-Submitted by David Drumm (Nal), Guest Blogger
Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, has a different perspective on the constitutionality of the Affordable Care Act. Professor Balkin argues that the individual mandate is a tax and the Constitution gives Congress the power to tax and spend money to promote the general welfare.
This necessarily and properly avoids the Commerce Clause.
While Congress and President Obama may not want to use the word “tax” for political purposes, for constitutional purposes, the Supreme Court has held that if a law raises revenues, it’s a tax. Americans have a choice, buy health insurance or pay a tax. The IRS has been charged with collection of the tax.
Like any tax law, this one has loopholes exemptions. People are exempt from paying the tax if they have health insurance through their employers, are on Medicare, are poor, are dependents, are in the military, live overseas, or it they have religious objections. The tax promotes the general welfare by making health services available and affordable.
Nor is the individual mandate a “direct tax“, such as property tax, or a capitation (“head tax”). The individual mandate is not a tax on the general population but only on those who don’t buy insurance and are otherwise not exempt. The individual mandate is a tax on behavior.
An interactive assessment of Judge Vinson’s decision can be found here.
H/T: NY Times, Amicus Curiae (Virginia v. Sebelius) (pdf).
Very astute post, Nal.
Here is a link to a short 8-page paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1584044
Abstract: This brief essay argues that the recently-enacted tax on individuals who fail to purchase health insurance is constitutional. Contrary to the claims of more than a dozen state Attorneys General, this “individual responsibility” requirement is well within Congress’ taxing power under Article I, section 8. That the tax has a regulatory purpose is irrelevant, a point that has been settled law since at least 1953. Moreover, the tax is not subject to the constitutional requirement that “direct” taxes be apportioned, because (1) it is an income tax, and thus exempted from apportionment by the 16th Amendment; (2) even if not an income tax, it is nonetheless an indirect tax, since it is a tax on a particular use of property or government services; and (3) it is an indirect tax because it is not reasonably capable of apportionment.
Perhaps NAL has misread Balkin.
In a Politico article from March of last year linked to below Balkin says of Obamacare:
“Congress has the ability to force people to pay taxes. If it is a constitutional tax, then that is the ballgame.”
He does, at least in that statement, leave the door open for the possibility that Obamacare is not constitutional.
This would be the only intelligent position to have taken ahead of time. But it is to not add any new understanding to the debate to state that congress has the authority to tax. That is a no-brainer. The issue is does it have the authority to provide universal health care.
It does not.
http://www.politico.com/news/stories/0310/34970.html
Oh oh. I was rude and ill-mannered. I wasn’t supposed to mention the Emperor Has No Clothes, and the scholar no brains.
I’m incorrigible.
Tootie the Unfit.
Oh dear. That was meant to be Article 1 Section 8. And not Article One Section 8)
Though I like the shades.
Oh yeah. Green Bay is winning.
Go Green Bay.
And if Steelers are winning.
Go Steelers.
I’m in it for the commercials.
Obamcare isn’t necessary nor proper, nor a power listed in the enumerations (which general welfare refers to).
General welfare is not a mystery (except to imbeciles, I suppose). What general welfare refers to is the words listed DIRECTLY below the words “general welfare” in the Constitution.
And no where in that list (nor anywhere else in the Constitution) do the words “universal health care” exist or are implied.
You would have to amend the Constitution to add this power to the federal government in order for general welfare, and thus, the necessary and proper to apply. Creating legislation is not the way we amend the Constitution, though the crooks and criminals in the Democratic Party think so.
It only goes to show you that really stupid people can get really plum positions in life and it is who you know not what you know (unless you are a neurosurgeon).
This is the plague of the modern liberal arts education now completely bereft of logic and wisdom. You get A’s for being an imbecile and you can probably get a Nobel Prize too. This, obviously, doesn’t work well if you plan to be a field engineer in electrical engineering.
General welfare has a limited meaning and grant of power and cannot be separated from the enumerations or other applicable responsibilities of congress (unless, as I say, you are an imbecile). Okay, maybe you could be a liar.
The necessary and proper clause especially refers to clearly defined powers that are outlined in the words previous to the words “necessary and proper”. (the bulk of Article 1, Section 8)
The power of the federal congress is to be strictly limited in scope, but those powers which it does have the authority to exercise are to be exercised with full force vis a vis the necessary and proper clause.
In other words, the necessary and proper clause does not apply to power the congress may not exercise and thus if forbidden to tax the people for.
Powers congress may not exercise (because they are not listed) are, for example: Obamacare, social security, medicare/aid. *I support full funding of SS and Medicare until they can be abolished. Medicaid should be abolished immediately.
These above programs are not listed enumerations or implied powers and thus are not what general welfare refers too. If we take Balkin’s viewpoint, the Federal congress has NO limit of power. No one in their right mind thinks the founders and framers threw off unlimited power just to create a government with unlimited power. Thus Balkin’s understanding of the General Wefare HAS to be in error.
If a power isn’t specifically listed or implied it isn’t to be exercised let alone TAXED vis a vis the necessary and proper clause.
Signed, Tootie, aka Tootie the Unfit, aka Group Tootie Inc.
Bob Esq.:
I could be wrong but I think Quintus is saying what you are saying, only in verse.
Go Steelers.
Quintus Arius,
Really?
You have no problem with the government claiming unlimited power for itself to regulate anything it wants simply by defining the object of said legislation as ‘commerce?’
And assuming you got past that one, what about Equal Protection?
What happens to the people of one state who may have to pay twice as much as the people of another?
Jim: “In any case, the government frequently imposes a requirement to “subsidize” various unwanted or unneeded activities on its citizens. I neither wanted nor needed a war in Iraq, for example, and yet the government is making me pay for one. My taxes pay for roads whether I drive or not. I’ve never needed to call the Fire Department. I don’t have kids, but my taxes are used to pay for schools.”
As I’ve been saying all along, you have to make this change through the tax rolls. It’s not the ends that are objectionable here; but the means which the authors of this goddamn Greek tragedy of a bill have chosen to employ.
http://jonathanturley.org/2011/02/03/health-care-and-federalism-a-response-to-charles-fried/#comment-199253
FEES
by
William Penn Umbra
I think that I shall never see
A thing as lovely as a fee
A fee that we can charge and swear
Is not a tax and not unfair
A fee is what we found is best
And by the law is swiftly blest
Once you have learned all the facts
You must agree it’s not a tax
Our budgets are made by Fools, you see
Now all of you will pay our fee.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Bob: I understand the argument made in the excerpt you posted, but I’m not sure I see the relevance. From a constitutional point of view, what does it matter if it is an externality or a subsidy?
In any case, the government frequently imposes a requirement to “subsidize” various unwanted or unneeded activities on its citizens. I neither wanted nor needed a war in Iraq, for example, and yet the government is making me pay for one. My taxes pay for roads whether I drive or not. I’ve never needed to call the Fire Department. I don’t have kids, but my taxes are used to pay for schools.
Nal: “Not when those who fail to subsidize are the cause for the imposition of the cost.”
You need to read the argument on that page.
AA,
I don’t think that the language is the issue, in my mind at least. Whether or not the madate is constitutional will be the issue, more so then any severability clause issue. If we had been luckier and the public option was approved the Right would have challenged that on some trupmped up grounds. If it was a Medicare for all type plan we would still be hearing the howls about Socialism.
I am surprised that the Obama administration didn’t make the wording in the Bill such that it would be exempt from these types of challenges. This is one way, but I am sure that are others.
Nal,
the following sentence of yours is excellent, “This necessarily and properly avoids the Commerce Clause.” It flows like one of Elaines’s poems. Great article. I think Prof. Balkin has an interesting angle.
Bob, Esq., When was the last time that an insurance premium was actually related to claims made and not profit desires?
Not when those who fail to subsidize are the cause for the imposition of the cost. If the uninsured never sought health services this would be a valid argument. Such is not the case, however.
An excellent response to Balkin found in the University of Pennsylvania Law Review
One highlight:
“Professor Balkin’s claim that the absence of young and healthy individuals from the insurance pool imposes costs on persons who choose to be insured. There are, of course, many cases where conduct by one party imposes costs on others. For example, when a manufacturing operation produces pollution but does not pay for it, the costs thereof are borne by society as a whole. Economists describe these imposed costs as externalities.
In an insurance pool in which young and healthy people are underrepresented, however, the premiums paid by the participating parties accurately reflect the underlying costs and risks. The uninsured, unlike the case with the pollution-producing manufacturing operation, do not impose any extra costs on the members of the pool. They simply refuse to subsidize the pool members. Equating a failure to subsidize with the imposition of a cost is illegitimate. It is essentially akin to claiming that a healthy person who refuses to donate one of his kidneys to a person dying of kidney failure is breaching some legal duty to that person. The reluctant kidney donor may be selfish, even churlish, but no more.”
http://www.pennumbra.com/debates/debate.php?did=23
OFF TOPIC
I beg your collective forgiveness, but I have a very off-topic question to ask our sports-knowledgable legal minds regarding today’s game name.
With the exception of golf, I do not follow sports. I’ve noticed in the last few years the increasing use of the phrase “The Big Game” instead of “Super Bowl”. Yesterday I heard commercial spot on a local radio station promoting an event their station is planning in conjunction with today’s game. In the opening line of the promo, the voice rather sarcastically says they’ve been consulting their attoneys who have strongly cautioned them against using the phrase “Super Bowl” in the naming of their event.
Why would this be?
ON TOPIC
The idea that this is a fully Constitutional, easy to avoid tax was raised early on after the passage of the bill but then dropped. I’ve never understood why supporters haven’t been promoting this argument all along. I’m sure I’ve posted comments in the past regarding this interpretation. As Prof. Balkin notes, there is no question of the Constutionality of Congress’ authority to levy a tax or to provide an exemption to said tax.
Hell…if you drink….they have a tax…if you smoke they have a tax….if you purchase a vehicle….at one time the total taxes could number in excess of 200….that was when lead was in the paint…
Then again….some are getting accustomed to the term USER fees…I have never seen a junkie pay a user fee…well…not directly…
Except the IRS isn’t a for-profit insurance company.