Obamacare’s defenders have obscured two crucial distinctions, and the end result is an unlimited federal power to command the economy. I don’t think they intended to produce this unlimited power, but they have done so anyway.
The first distinction is between action and inaction. This is a common distinction in law and even in political theory. It is also utterly fundamental to maintaining at least some limits to government power.
The power to punish someone’s failure to act in a given way is logically equivalent to the power to dictate the action in question. There is no difference between them. If you were to dictate the action straightforwardly, sans obfuscation, the only way you could have assurance that your dictate would be followed would be to punish the corresponding form of inaction. That’s what a command is.
And this is precisely what has now been done. We are commanded to act, here, in certain ways with respect to other private entities — insurance companies.
Now, the Constitution does contain the power to command in certain other ways. It dictates that we are subject to taxes and the census, plausibly to military conscription and even arguably to jury duty. But these are all commands that we behave in certain ways with respect to the government. It is the government that commands; it is the government that benefits. And in each case, there is a fairly clear authorization and limitation to the power. Were the government to “conscript” me to break rocks in a quarry during peacetime, or if they were to call this service “jury duty,” it would clearly be breaking its own limits.
The power to regulate commerce also implies that Congress may set standards for products and services, may define what a given term or a given measure means, may even set worker safety standards. Highly conditional prohibitions of inaction clearly get a pass; it could not be otherwise. “If you operate a mine, you must submit to safety examinations” not something I remotely wish to question. But this is, as I said, highly conditional — “If you do A, you must also do B” is of a very different order than “All people must do B.”
As I’ve pointed out above, the recent healthcare legislation commands us to transfer our wealth to certain private corporations in return for their products. Remarkably, the Constitution contains no limits whatsoever on the power to command in this way. That’s because this sort of power was never actually authorized — unlike the power to tax, which clearly is authorized, and which gets clear limits in the text as well.
“But wait,” supporters say. “This isn’t a command, because there is no penalty. It’s only a tax, combined with the remission of a tax, for some. And you’ve already said that taxation is authorized.” This is the second obfuscation. The very fact that it was necessary to hide a penalty within the taxing power should make proponents blush with shame. But, of course, it doesn’t.
The purpose of a tax is to raise revenue for the government. As such, taxes should be applied generally, and according to some standard of justice (this is what the “general welfare” clause requires, as I’ve already explained). A nearly ideal standard here is individual apportionment, conditioned on the ability to pay. The income tax and the state-level sales taxes are both plausible efforts in this direction, although neither is perfect, of course.
It’s even true that there are many, many incentives and penalties in our tax code. There are taxes on highly specific and even highly necessary products. Yet none of these to my knowledge are triggered on the mere failure to purchase a private product. Nowhere, so far, had we incurred a federal obligation because we hadn’t bought something in a market.
Now that we can incur such obligations — where do they end? If you’re going to tell me that health care is the one and only, I’m afraid I’m going to laugh at you. Politicians don’t leave powers that good just lying around.
As a thought experiment: Suppose we levy a tax on everyone. You can get out of it by spending two days a week breaking rocks in a quarry, in leg irons. The beneficiary is a multinational mining corporation.
It’s just a tax, I’m sure you’ll have to admit — not a penalty in any sense at all. And it’s certainly within the federal government’s power to regulate the mining industry. No one doubts that, do they? So the whole thing gets a pass, constitutionally. Right?
Finally, some pre-emptive rejoinders:
- If being insured really is that important, there must be other ways to do it.
- The fact that Republicans didn’t come up with any alternatives doesn’t make what we’ve gotten even a tiny bit better.
- No, I didn’t particularly like the status quo. There were sensible ways of fixing it. We should try them.
- Would a universal single-payer system be more constitutional? Just possibly, though I have my doubts. At the very least, it wouldn’t suffer the particular defects I’ve outlined here. Much could depend on the system’s design, I think.