The Two Obfuscations of Obamacare

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.
Please do be so kind as to share this post.
TwitterFacebookRedditEmailPrintFriendlyMore options

180 thoughts on “The Two Obfuscations of Obamacare

      • “If you like your current plan, you can keep it” turned out to be untrue, and almost certainly it was a knowing lie.

        I’m on an HSA. Formerly, I could use my health savings for over-the-counter drugs. Now, inexplicably, that’s been forbidden. I can’t think of a public policy rationale for it, but now my health insurance is a lot less useful than before.

        For some people on more conventional plans (like my mother-in-law), premiums have already gone up significantly. Companies are beginning to pull out of high-cost markets altogether.

        The law’s most well-informed supporters surely knew about all of this — that plans were indeed being altered, and that the incentives the bill created would even end some others. They must have known.

        Report

  1. I have trouble taking anyone who calls it “Obamacare” seriously, not only because it’s a silly name, but also because it wasn’t really the health care bill Obama wanted.

    That said, I don’t really see supporters of the ACA failing to make the first distinction, though they do “fail” to make the second one (whether it’s constitutionally relevant is not for me to say, though the arguments here aren’t particularly convincing).

    Also, of course there are better ways to do it. See., e.g., virtually every other Western democracy.

    Report

    • And I have trouble taking seriously someone who would get so hung up on a nickname.

      Look, I’m perfectly content to call the Massachusetts plan Romneycare. I hope that balances things, but if it doesn’t, just please accept that I have extreme difficulty calling this bill by its cheerleading and manifestly unproven official name.

      A more honest democracy might adopt the naming convention found in France, in which laws are named for the date on which they become official. Assuming we could avoid passing legislation on certain loaded dates (July 4? September 11?), we could have a fairly value-neutral system.

      Report

    • I actually take Mr. Kuzinicki very seriously–he is intelligent, consistent, and sincere–but I agree that calling “Obamacare” is a big turn off (for me, at least) to polite debate. Not only does the “Obamacare” label not work for the reasons you cite, it also has a whiff of “some evil Kenyan national is coming to euthanize you.” I don’t claim Mr. Kuzinicki or many of the others who use that term really intend that message, but that’s what rankles me when I hear it.

      Report

        • I agree, let’s move on. But “ACA” is certainly easier. I’m not sure what makes “Obamacare” “best,” other than that it has a valence one might want to employ.

          Report

              • I’m a buffoon.

                But I’m sitting here watching people cheering when they’re told things that strike me as being obvious lies that will result in them being worse off.

                I mean, hey. I’m going to be okay. Maribou is going to be okay. We’re going to be okay pretty much no matter what happens. I just feel awful because I see a bubble getting ready to pop and if you thought that things were bad in 2009 with regards to health care, you ain’t seen nothin’ yet.

                The Gods of the Copybook Headings are coming back to explain the way the world works, and soon. Meanwhile, people are cheering the gods of the marketplace in greater and greater numbers.

                It will all end in tears.

                But, in the meantime, at least there’s an opportunity to crack a joke or two. So I’ve got that going for me.

                Report

                • This is all in response to the suggestion that we call the thing by an extremely simple abbreviation derived from it’s actual name? And people seriously want to say there isn’t politics and coloring involved in the simple, innocent insistence that it be called Obamacare because, you know, it’s just “the best” name for it?

                  Report

                    • So you admit that you have a political fire burning in you to call this Obamacare, or at least something other than its name, and that the act of doing so is not just an innocent reversion to the most natural available referent? (Though I actually agree that Obamacare is pretty natural and actually don’t have much problem with it myself. But that doesn’t make it the most natural, easiest, or best name to use.)

                      Report

                    • Erm, no.

                      It’s a song lyric from “Pass it on”.

                      It’s not that I think that “Obamacare” is particularly inflammatory (indeed, I’m pretty sure that if it were polling sky-high that Republicans would call it “THE BIPARTISAN COMPROMISE” and the Democrats would call it “Obamacare”), it’s that this seems like obvious *FRAMING* rather than discussing substance.

                      It’s “feelings management”.

                      Which brings us back to treacly Christian folk/pop songs…

                      Report

      • Jason, what Pierre said.

        Also, I have no problem not using the “official” label, because bills that might be controversial are always given propagandistic names. I just call it the health care reform bill (or law), usually.

        Pierre, as someone who’s been reading Jason since… damn, since like 2004, and who followed him here, I hope he doesn’t doubt that I take him seriously, though we have had some dustups in the past over health care reform. In this case, though I just find that label absurd. I’m not a defender of the bill as I find it about as abhorent as people on the right do, just from the opposite direction.

        Report

    • Chris:

      It may not be the bill that Obama but it is the bill that has his signature on it so why not Obamacare? I thought that Obama promised to revamp health care so why not be proud of it?

      Report

    • One problem is that it would involve forbidding private insurance entirely. I have my doubts about whether this is either necessary or proper to the regulation of the industry.

      Report

      • I guess single-payer by definition would do that (otherwise a system wouldn’t be sinlge payer), but what about a simple national health coverage policy for everyone funded by general taxes (perhaps a surcharge on 100-million-dollar incomes) that has fairly limited benefits, with a private system of insurance or HSAs for people who want to be covered for more or better procedures? A national health plan wouldn’t disallow private insurance; it would only become the dominant player in one part of that market.

        Report

  2. Is your basis for saying the the activity/inactivity distinction is common in law based on anything other than your observations that most laws treat action and not inaction? Is that somehow a positive limit on what kinds of new laws can be passed? Where in Article I do you see it saying that regulations of inactivity can’t be undertaken pursuant to the grants of power given to Congress? Your view that mandates of activity were specifically couched in other parts of the Constitution is well taken, but given that mandates were clearly an instrument known and employed by the drafters of the Constitution, why must we conclude that they would have been seen out of bounds as instruments available to Congress in legislation pursuant to specific grants of power made in the text?

    Report

    • The distinction between activity and inactivity is central to criminal law, tort law, the law of contracts, and rights theory. It’s important in each of these for analogous reasons to the ones I outline above — the power to regulate inaction is a much larger thing than the power to regulate action. Inferences from inaction and penalties therefrom tend to be sweeping and onerous. It is extraordinarily difficult to craft limits in this territory, and this problem would remain even if our Constitution did attempt the task, which it doesn’t.

      Report

      • I am not a lawyer or a scholar. So what about it, Mark Thompson (if you don’t mind my calling on your credentials)? Were sixty Senators, well over half of the House, and two federal judges guilty last year of approving a law that violated a strict limiting principle that is central to these kinds of law (of which, I take it, Jason holds ACA to be one or another)?

        Report

          • I’m just soliciting further opinion. I don’t know exactly where the specific contention Jason makes is supported in the documents he links, or why we would see them as dispositive of the question either, nor how that question pronounces in a final way just based on those documents on the utter conceptual legal impropriety of the individual health care mandate, regardless of anything else, which is essentially the claim Jason is making. But on the other hand, I can’t myself dismantle the arguments in these documents that support Jason’s contention, partly because I don’t have the knowledge or expertise (and partly, relatedly perhaps, because I can’t identify where the documents do that). So I thought seeking the opinion of someone in the community with legal training might be enlightening. I don’t expect anyone to genuflect to whatever Mark might say.

            On the other hand, it’s just the case that we do accord at least some greater weight to the views of experts in their fields when we are not such experts, isn’t it? No one expert has the final word, but we give what they say greater weight than that of laypersons, do we not? The argument from authority fallacy just says that just because you can cite an expert who supports your view doesn’t mean that you have conclusively ended a debate in your favor. I’m not saying Mark’s view should end debate; I’m just saying we should be interested in knowing what it is.

            All that said, Mark has a busy life of his own and I wish him well and mean to make no undue request on his time here. But I respect his opinion.

            Report

                • I do expect you to take Mark’s argument, should he ever make one nothis question, seriously, at leat at the outset, which is not to say you must agree with him. but he is a respected member of the communty here, and of course we should take what he says seriously. but that is not an Argument From Authority. The Argument From Authority happens when I say, “Mark Thompson is an Authority on this, so we must agree that whatever he says is right (if it happens to agree with my view).” And I am absolutely not saying that.

                  Am *I* to take seriously your suggestion that to solicit or wonder about the opinion of a particular individual on a particular question is to make an Argument From Authority? I am beginning to think that I was not actually supposed to take that suggestion seriously to begin with.

                  Report

                  • Nitpick:

                    > The Argument From Authority happens
                    > when I say, “Mark Thompson is an
                    > Authority on this

                    The argument from authority fallacy occurs when you say, “Foo is the Authority on Bar, and Foo says we must do this.”… *when* Foo is not “the” Authority on Bar.

                    Foo might *be* the Authority on Bar. As TPG points out, we *have* an actual registered and accepted final authority on the Constitution (SCOTUS). Legally, according to the document itself, they *are* the Authority.

                    (note: they may be in practice the authority but in principle a bad authority, but that’s neither here nor there).

                    In addition, Foo might very well be “an” Authority on Bar, which legitimately (non-fallaciously) means that his assessment holds more weight than a non-Authority (note: there can be multiple, conflicting Authorities).

                    So calling upon Mr. Thompson to provide a legal assessment is a legitimate appeal to *an* Authority, for evidence purposes… unless we find another more authoritative Authority :)

                    Report

                    • I always thought that the fallacy was of the form “So-and-so is an authority on X, therefore we should listen to him when he talks about Y.”

                      We’re allowed to appeal to Carl Sagan when it comes to how many stars there are.

                      There are billions and billions! Carl Sagan said so! He’d know! (Not particularly fallacious.)

                      The problem comes when we appeal to Carl Sagan for stuff that he ain’t the authority on because he *IS* an authority on the number of stars.

                      Or whatever.

                      Report

                    • I think you’re right that my appeal could have been to him as an authority of sorts around here as compared to most others, but it really wasn’t intended that way. I merely say that I regad him as somewhat more authoritative on the question than myself, but I was not making a claim as to what level of authority others should accord him, beyond a minimal level that his legal credentials I would presume would make his opinion of interest to most here. Beyond that minimal extent, i did not intend to hold him up as any level of authority on these questions that readers should give any particular level of weight to.

                      I did note that according weight to expertise is something that we routinely do in argumentation; to pretend otherwise is just posturing. But I can’t remotely say what level authority people should accord to Mark. really not much, I don’t think, because I don’t think he would want us to. But his opinion is nevertheless of interest to me, and because of his association here and relative level of credentials, I would think it would be of interest to others. But I certainly don’t hold it over their heads.

                      There is enough disagreement on this question that I have seen among people who do claim expertise, and I think legitimately have it in my view, that this matter can’t be resolved conclusively by authority at all here (thinking Charles Fried here among others), so in no way could I have been appealing to Mark as a settling Authority of any kind.

                      If merely saying that his association here and credentials are enough to make it so we should at least all be interested in what he has to say means that I have made a “a legitimate [non-fallacious] appeal to *an* Authority, for evidence purposes…”, well then fair enough.

                      You will have to take up with Jason whether SCOTUS is the accepted authority on the meaning of the Constitution. But I think that kind of authority is a whole different kind of creature from the one The Pirate Dude invoked that relates just to advancing resolution of friendly intellectual discussions among private peers.

                      Report

                    • > “So-and-so is an authority on X,
                      > therefore we should listen to him
                      > when he talks about Y.”

                      That’s the most common form, yeah. Because you’re transferring authority when you ought not.

                      But in public discourse you see a lot of this version, too:

                      “So and so is an authority on X, therefore we should listen to him when he talks about X and not pay attention to all of the other authorities on X who think so and so is full of fishing wit.”

                      Report

                    • > Since we know that it was the wrong
                      > decision, this gives us tension.

                      Yeah, that’s for certain. There’s a difference between (weighing the merit of an authority’s opinion) and (assuming your authority is infallible).

                      Tension ain’t goin’ ‘way, anytime soon, methinks.

                      Report

                    • Right, well that’s why I deflected it to someone with a strong position on the matter, because my view on it is currently agnostic, even up in the air. The view that two-hundred-year-old scratchings on parchment have absolute, unambiguous meaning (or that there is a practical, absolutely correct route to constructing such meaning) is also problematic — for me.

                      Report

        • Michael:

          I would not be the first time that Congress in its infinite wisdom to do “good” passed a law that was unconstitutional. Just look at Lopez. If there was ever a bizarre rational that folks cobbled together to justify gov’t interference that was a good example, sort of like Obamacare.

          Report

          • By all means perhaps the law is unconstitutional; that’s not what I am suggesting would be remarkable. What would be remarkable is if they passed a law that truly violated a limiting concept in law that, according to Jason, is even more fundamental than the Constitution (and thus must presumably be known or ought to be known to the predominantly-lawyer group of people comprising Congress). And I’m not saying it’s impossible, merely saying that it would be a remarkable moment and wondering how much agreement there is about it even in our small group of discussants here, of whom a few are legally trained, to say nothing about the wider world.

            Report

            • What would be remarkable is if they passed a law that truly violated a limiting concept in law that, according to Jason, is even more fundamental than the Constitution…

              Which principle would that be?

              If you’re referring to the action/inaction distinction, I would simply ask you — under what possible sense of the word “commerce” could inaction be contained?

              Could the dead engage in commerce?

              Report

              • You make it sound so simple, and yet soooo many lawyers, academics, and other informed people disagree with you (while many others agree). I don’t claim to be able to sort it out myself, but you yourself are not a final authority of any kind on the question as far as I am concerned. You will notice that I am not denying your contention, merely asking questions and attempting to observe an array of views on it.

                An answer to your question could be that in a field in which no one has the power to guarantee they will refuse services for which they are unable to pay when under duress, it is a positive commercial action to forgo reasonable arrangements to cover those expenses if one can reasonably afford to make such arrangements. I’m not making that argument myself, but I have seen it made. it is one possible way to look at this question. I don’t consider your first-principles assertions about the impossibility of making laws relating to inaction to be in any way authoritative when others with greater authority in the foeld make exactly such arguments. Again, i am not making that argument as one youmust accept and cause you to abandon your position. i am just at a loss as to why you keep repeating your view as though doing so will make it more authoritative. Perhaps your view is right, but it’s not a matter of logic, it’s a question of fact about the law, and I just don’t know the answer. there are too many people of status in the area you are attempting to be the final word about who disagree with you for me to take what you say on faith, and you are not citing anything that to me looks like an authoritative source to confirm that what you are saying is correct. Nor are you making arguments that compel me to think it. Do you contend that you are?

                Report

              • And again, in this articular comment what I was attempting to do was not directly question your view, because, as iI I *don’t* claim to be able to refute it, but merely to observe that if it is a fundamental and obvious, even unavoidable, a truth about law itself as you make it out to be, and the ACA violates it, then it really is remarkable that majorities of two legislative bodies full of lots of lawyers as well as two federal judges have approved or upheld the measure as written. At least to me.

                Report

            • I dunno. “The president gets to grab people, lock them in a hole, and torture them indefinitely” seems pretty clearly unconstitutional to me, yet many Very Serious People thought it was obviously fine, and acted shocked when even justices they approved of disagreed.

              Report

              • Okay, so does that mean that when someone – just anyone, authority or no – says, “the Constitution means X,” that it means X? Very Serious People can be wrong, if they are disagreeing about the meaning of the Constitution (unless we think the Constitution can mean multiple things at once), but that doesn’t mean that the fact that Very Serious People are diagreeing about a constitutional question doesn’t give us legitimate reason to retain doubt that what a given private person asserts about what the correct answer about the constitution means with respect to that question is, is correct.

                That’s why, true meaning aside, we give the ultimate decision about practical meaning over to 9 Very Very Serious, Authoritative, and Final People – because the point of law is ultimately to settle disputes in a relatively predictable, nonarbitrary, perhaps just way. And that’s why they talk about things like stare decisis, not just the true Original Public Meaning of a document (though they do talk about that). Or so I’ve read.

                Report

              • Also, I would remind that this was all in response to a claim about how the very nature of law itself oughtn’t to countenance a recently passed law (or such became of Jason’s Constitutional argument), not strictly a question of the meaning of the text of the U.S. Constitution itself (though I undertand that Jason would say the document carries that meaning by assumption, implication, and incorporation), so I think VSP (and common) opinion on whether that is so is even more relevant to our own assessment of whether it is than it would in a dispute about the meaning of a specific clause in the U.S. C.

                Report

  3. Re: tax vs. penalty

    I think Mr. Kuzinicki is right that the penalty operates as a penalty, or if it operates as a tax, it does so in the way that (and, in the abstract, even I) would find objectionable, even up to the reductio ad absurdum of a tax rebate for cutting stones in a quarry.

    I’m not sure it’s unprecedented; I’m not sure it isn’t. Do people ever get tax breaks that everyone otherwise has to pay for entering into a certain line of work? I don’t know; and even if there are such examples, they don’t necessarily refute Mr. Kuzinicki’s point.

    What if, however, the health care tax were really a tax designed to pay into or at least offset the borrowing necessary fund medicaid and medicare? Then this particular objection might be met, although perhaps not by the current law.

    Does anyone know, by the way, if the new law pledges the government to do anything with the penalty money it collects?

    Report

  4. 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

    Wouldn’t this be effectively the same thing as the gov’t saying everyone is taxed, say $5,000 but if you work two days a week in a big mine you’ll get paid $5,000 a year? Is this functionally different from saying, say, that military pay in combat zones is immune from income tax?

    It’s just a tax, I’m sure you’ll have to admit — not a penalty in any sense at all.

    What exactly is a ‘penalty’? Think about it. On my taxes withdrawing early from an IRA incurs a ‘penalty’, filing late has a penalty and so on. I suppose you can say the death penalty or 20 yrs to life is a ‘penalty’ for murder but we don’t often talk like that, we usually talk sentences or punishments.

    It would seem that ‘penalty’ is not a legal term but a policy term to denote a tax that is optional. Optional in the sense that you can avoid it or opt to embrace it. If, for example, you’re in a financial bind you can take money out of your IRA and simply pay the penalty (aka tax). or if you’re having trouble filing your CPA can advise you to pay the penalty for filing late.

    A Professional (meaning someone like a lawyer or CPA who is under ethical obligation to uphold the law) can ethically advise you to take a penalty, but cannot advise you to break a law. The lawyer can say “file this form late and pay the $50 penalty” but I don’t think he can ethically advise you to “write this guy a bad check, then pay the $50 fine for passing bad checks”. The first is an option the law says is an ethical option the second is an illegal, but with a realtively minor punishment.

    Likewise:

    The purpose of a tax is to raise revenue for the government.

    No problem there, last I checked the money collected by the IRS goes to the gov’t.

    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.

    Here it would seem the charitable deduction is a good analogy. Two people look exactly alike, same job, same income etc. One guy, though, donates a lot and the other donates nothing. One has a smaller tax bill. You got ‘general application’ of tax liability but the deduction can be justified on the grounds that such donations reduce the demands on the gov’t for relief therefore the more charitable taxpayer has a lower tax burden. That would seem to apply here where those buying health insurance are reducing the gov’ts need to subsidize those who don’t have it as well as cover their own expenses rather than appealing to the gov’t should they need it.

    Report

    • I think if the ACA had been passed as:
      Everyone has to now pay $2000 extra tax to help cover medical costs. If you have insurance, you can deduct the premiums and all other medical expenses from your taxes (with some provision for employer provided coverage).

      Thus the tax is applied to all, but those who choose to alleviate the burden of government to cover their medical will gain a benefit.

      Report

  5. Negligence is a tort concerning inaction. It seems to me that this provision is much the same (ie, that only purchasing health insurance could comprise a reasonable degree of care), and I’m wondering how the penalties for each match up.
    I really have no idea as to what the federal case law on negligence might hold.

    As to the points at the end:
    I know that people are exempt from auto insurance in certain states if it can be shown that they have enough cash to cover the standard policy payout.
    I like the HSA option, and I felt that this could have been reworked to make it more usable. Doing away with forfeiting the funds at the end of the year would be a great place to start.

    Report

    • It occurred to me that the issue in seeing this (the inaction of not purchasing health insurance) as negligence is one of standing.
      Ordinarily, the negligent party is an entity other than the injured party.
      If I am negligent toward my own property, then no one else has standing to compel me to do otherwise.
      Except in cases like mowing the yard to where no weeds are more than 3″ tall, etc.
      Matter of fact, there’s an awful lot of things where I might be liable through inaction, like not taking the kids in for vaccinations, etc.

      I’m thinking aloud now rather than gathering my thoughts.
      Back later.

      Report

  6. How about a new rule:

    Anyone who makes a constitutional interpretation argument that results in a nonsense, obviously-unpassable bill passing constitutional scrutiny has to start over.

    Right now, Congress can make the Swedish the official language and can require all food labels to include a photograph of Mr. T. What does that say about the Constitution? It says that its authors did not dream up every possible way Congress could act stupidly and not much else.

    Report

  7. I’m unclear as to why such a tax _would_ be unconstitutional. You didn’t address that point at all.

    I’m also unclear as to why such a thing is more morally reprehensible than the dozens of other ways the US government has to transfer our money to large corporations.

    Also, unrelated, and I say this on every discussion about health insurance: I wish everyone would get off the ‘Everyone needs insurance’ idea. No, everyone needs health care. And easiest, and this case most constitutional system, would be simply to pay health care providers for the services they render to Americans, out of taxes, period, the end. Forget ‘insurance’. Go to a doctor, the doctor turns in a bill to the government that says ‘I did procedure X on a citizen’, and the government sends him $Y.

    Report

  8. By the way, while it requires not making a distinction between federal and state laws, the fact that so many supporters of the ACA/Obamacare/the health care reform law analogize it with laws mandating that drivers purchase car insurance certainly suggests that they aren’t failing to make a distinction between action and inaction.

    Report

    • I was thinking along the same lines, but there are a few distinctions.
      With auto insurance, there are necessary requisite actions; driving a vehicle. Health insurance seems to presuppose a body of action, which would be a natural inference; ie even if you’re asleep now, you will likely wake up later.
      But the minimums for auto insurance are determined by the state, not the federal government. Really, I think that’s the sticking point.

      Report

  9. You know if you simply had passed a $2,000 refundable tax credit for anyone who buys their own insurance you’d have effectively the same thing as this so-called mandate!

    Now explain to me why this huffing and puffing is about something of substance rather than trying to dither about form?

    Report

    • The odd thing is that it’s already there; somewhat.
      You have to itemize, and the total costs have to be more than 2% of AGI, but anything you pay above that is deductible from income.
      But I think that’s one of the things they did away with to make insurance more affordable. However that works.

      Report

  10. My favorite part of the post was the disclaimer at the bottom… “If being insured really is that important, there must be other ways to do it.”

    And yet somehow conservatives/libertarians never get around to actually passing such plans. Forgive me if I find your right wing noblesse oblige disengenous. When push comes to shove, you’ll always push the poor to the curb, dooming tens of thousands die each year and millions live in chronic suffering because of lack of insurance…

    In the end, libertarianism is just a seven syllable word for adolescent sociopathy… an excuse to find one’s own callous disregard for others sound like virtuous principle.

    Report

  11. Jason –

    I get that you’d rather debate first principles, but how are your pre-emptive rejoinders not a complete cop-out?

    If you can’t be bothered to formulate how your ideal policies (or conversely, your nightmare scenarios) could come to be law within the current political landscape or some conceivable future political landscape, then how can your arguments have value? This is arm-chair quarterbacking of the worst kind.

    Report

    • I’ve already suggested several improvements that I think would be constitutional. I’d make health insurance benefits taxable just like ordinary income, thus severing them in time from employment. I’d allow tax-deductible HSAs to pay for everyday medical expenses, which will shift the insurance industry away from a comprehensive model and toward a focus on the small number of very expensive cases. I’d take regulation out of the hands of the states and create a federal market.

      I’ve even hinted that a national single-payer wouldn’t be as bad as what I’m seeing here, and increasingly, I believe it.

      I’m sorry if you missed these things, but I have said them. For the moment, though, with the cases making their way through the courts, that’s not where my primary focus is. The courts don’t have to provide a new plan. They just have to decide on the constitutionality of the one we’ve recently gotten.

      In this post, I don’t address that issue directly, but I do try to explain why it is that our Constitution does the strange things it seems to do here.

      Report

      • So your solution is to drastically reduce the number of people who choose to be insured by making them much more aware of the costs of being insured by discontinuing the good deal their employers get in paying them in coverage rather than cash, and compensate for this by offering a mild tax inducement to save for health emergencies to a nation that demonstrably has problems saving for the things it already needs to save for anyway. It has the virtue of virtue, I’ll give you that.

        Let me ask you this: how important to you is it that this be done? Would you be advocating for it as a top priority among your advocacy issues if the governing party had not made it one of their top priorities and achieved enactment of a law around it in the recent term? Did you so advocate before this last term began? Strongly?

        Report

  12. Yet none of these to my knowledge are triggered on the mere failure to purchase a private product.

    Let’s assume the First-time Home Buyer Credit was paid for with increased revenue? So taxes were increased on everyone and then people who buy a house get their share back. Is it fair to say that the credit commands/forces you to purchase a house?

    Report

    • When Jason framed this hypo in terms of a tax, I too thought he lost his point because in that case it applies to basically all of tax incentive policy as well. Yes, the tax penalty of not buying house is triggered by… not buying a house. The question is whether a *penalty* for not obeying a “command” is not allowed because it is a penalty and not a tax.

      Report

      • If I take money out of my 401K I incur a penalty on my taxes. If I file my tax return late I incur a penalty as well.

        It seems to me the world ‘penalty’ exists not as a legal term but a policy one. Legally/policy wise ‘penalty’ seems to mean a type of tax that I have the option of choosing either accepting and paying or avoiding by doing something different.

        Herein is the problem with this whole mandate argument. The bill ACTUALLY DOESN’T HAVE A MANDATE! There is no crime of refusing to buy insurance. The individual is not commanded to buy insurance. The worse that happens is your tax bill may be a bit higher, exactly the same thing that happens if you don’t have kids, don’t have mortgage interest, don’t make lots of contributions to charity or don’t put solar panels on your home. You can’t logically challenge this as a mandate unless you want to argue all ‘social engineering’ aspects of the tax code is likewise an unconstitutional mandate.

        Report

  13. Even better, consider the Earned Income Tax Credit. If you have a kid it can be as much as $3K. If you don’t I think the best you can get is $500 or so.

    Guess what. You’re a Buddhist monk living in a monestary doing a light, min. wage job. It’s Feb., you do your taxes and discover you’re getting $500 back due to the EITC. Your fellow monk, though, is taking care of a kid he had before he decided to join. He’s exactly like you but gets back $3K.

    OMG, the Federal Government has just MANDATED people to have kids!

    Report

  14. No one who supported Bush’s Social Security privatization gets to complain about the constitutional issue. (I’m aware that doesn’t affect Jason, but it does cut that side down pretty much to hard-core libertarians.)

    Report

  15. When I was in (public) high school, all the boys had to buy a specific set of gym clothes from a specific vendor [1], so we’d match. Unconstitutional tyranny!

    1. White trunks, reversible blue and gold shirt.

    Report

  16. “Obamacare’s defenders have obscured two crucial distinctions, and the end result is an unlimited federal power to command the economy. ”

    I must have missed reading the part in the PPACA that provides “unlimited federal power to command the economy.” Which section was that in?

    Oh, sorry….this is one of those oh-so-convincing slippery-slope arguments.

    Report

      • Perhaps, but when Kuznicki’s telling me that the government has “unlimited federal power to command the economy” I want to see where it’s codified in stone. His “thought experiments” about leg irons and breaking rocks are not convincing there are no limits on federal power in a world with Obamacare.

        Report

  17. “Jason” or “Mr. Kuznicki” would make me more comfortable, and in the spirit of a league of gentlemen, even ordinary ones.

    Vinson’s decision had an exquisite argument along similar lines: if this bill is constitutional as “necessary and proper,” and it ends up bankrupting the private insurers, it will be “necessary and proper” for something even more radical/extravagant to “fix” the crisis. And so on and so on.

    I do recommend the Patterico.com blog for a number of arguments I haven’t seen aired here, for example

    VINSON: “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

    Report

    • “The Right Honorable Gentleman” would be better.

      It seems that Judge Vinson’s (he too is deserving of an honorific, I suppose) slippery slop argument relies on a lot of “ifs” and, worse, takes for granted the (false) assumption that the individual mandate requires you to buy something.

      No, it requires you to have a minimum level of health coverage. You can get that a variety of ways, including paying out of pocket, but also from the government or an employer-subsidized plan where you’re only paying a portion of the costs.

      I know this is a subtle difference, but it’s a real difference nonetheless.

      The government is not saying, “You must buy insurance and do anything else I say. Ha Ha Ha!”

      The government is saying, “Look, the chance of you using the healthcare system is 100%. Since I’m legally obligated to provide you healthcare when you get old, you’re going to have to get health insurance when you’re young. Sorry, it sucks I know, but we live in the 21st Century and I’m going broke providing healthcare to you people. Time you start sharing the burden.”

      Sounds reasonable to me.

      Report

      • The government is not saying, “You must buy insurance and do anything else I say. Ha Ha Ha!”

        No, but what they’re explicitly saying isn’t the issue. The issue is where the logic of their constitutional argument leads. When the Commerce Clause was reinterpreted in the 1930s to apply not just to actual goods moving across state lines, but to all activity that substantially affected those goods, nobody then was saying, “and this allows government to require you to buy health insurance, ha ha ha!” But the logic of the constitutional argument has now led to the government making such a requirement.

        Once we agree that the Commerce Clause allows Congress to require you to buy a product, there is no logic that prevents it from requiring you to buy some other product.

        And slippery slope arguments are entirely valid when we are discussing constitutional interpretation, because the interpretation of the law works by analogy. B is very similar to A, so what justifies A also justifies B. C is very similar to B, so what justifies B, which is justified by what justifies A, also justifies C. Unless there is a pretty clear disjuncture at which the analogy no longer applies, there’s nothing to really stop movement along that slope.

        A bad slippery slope argument is one that requires leaps of logic along the way (i.e., “allowing the UN to be based in the U.S. will ultimately lead to it taking over and destroying U.S. sovereignty”). A good slippery slope argument is one that points out that there are no logical stopping points along the way.

        Report

        • What is the logic that ever established that the Commerce Clause does not allow Congress to require us to buy a product (regardless of whether this law does that, which I think is open to question)? And why were GOP Congressmembers not aware of that logic when they were proposing doing so (to a similar extent this law does so in any case) within their measures offered up as alternatives to the Clinton health plan? These are both honest questions; my mind is not set on either of them.

          Report

          • What is the logic that ever established that the Commerce Clause does not allow Congress to require us to buy a product

            First, the fact that for 140 years it was understood to refer only to actual transport of goods across state lines. Second, the fact that after the interpretation was changed it was understood to refer only to business activity that had some relationship to goods that were transported across state lines. Nobody ever looked at it and said, “Oh, we can regulate consumer activity, so as to require them to buy something.

            And why were GOP Congressmembers not aware of that logic when they were proposing doing so

            Do you mean besides the fact that GOP congressmembers are by and large dishonest and idiotic? The most fair thing I can say is that maybe they hadn’t thought it through yet. But also I don’t think it’s the case that it ever had much GOP support–it wasn’t like GOP members were out there rallying their constituencies for an individual mandate at the time.

            Report

        • Again with the “require you to buy a product” stuff. This may come as a surprise, but PPACA doesn’t require you to buy a product. It requires you to have a minimum level of health coverage, which you can get without having to purchase a thing.

          I really wish this would sink in around here. It seems that the “require you to buy a product” stuff is not necessarily a slippery slope, but just a rather slippery use of language. I’d like to see the same constitutional arguments using the term “minimum level of health coverage” and see how well they stand up.

          As to the actual slippery slope argument we’re talking about, question:

          Which product do you think the government will require you to buy next? A is health insurance. B is…..what exactly?

          Report

          • I’m hearing a-lot of conservative concern about broccoli which can actually be quite tasty when prepared well.

            It is better than requiring me to become a parent(even though I want to do that too.)

            Report

          • Again with the “require you to buy a product” stuff. This may come as a surprise, but PPACA doesn’t require you to buy a product. It requires you to have a minimum level of health coverage, which you can get without having to purchase a thing.

            And how exactly do you “have” it without “buying” it? This sounds like one of those dodges that defenders of the bill are coming up with, right alongside of “oh, a tax isn’t actually a penalty.”

            Report

            • Check Sec. 1501 to see for yourself, but here’s the summary:

              A) Government Sponsored plans
              1) Medicare
              2) Medicaid
              3) CHIP
              4) TRICARE for Life
              5) The VA
              6) The Peace Corps health plan

              B) Employer-Sponsored Plan

              C) Plans in the individual market

              D) Grandfathered healthplan

              E) Other (risk pools, etc)

              As you can see, there are many ways of getting “minimum essential coverage.”

              And in only one are you doing anything resembling “buying a product,” and that would be C. In all the others, it’s either already been bought or subsidized in one shape or form by someone else –maybe your boss, maybe Joe Taxpayer– either as a benefit or as part of our beloved social safety net.

              You want to talk about dodges….

              Report

        • > Once we agree that the Commerce Clause allows
          > Congress to require you to buy a product, there is
          > no logic that prevents it from requiring you to
          > buy some other product.

          Quibbling aside with the idea that this is a requirement and a product…

          There are a bunch of other clauses in the same Article. There are a bunch of Amendments to the Constitution. It’s not like “the Commerce Clause” is some magic trump card that renders all other bits of the Constitution invalid. I can think of all sorts of checks on requirements that could easily be regarded as over-riding this power.

          Why does everyone assume that particular incidents are always generalizable in the law? I mean, I’m not a lawyer, but it seems to me that there are plenty of precedents that are pretty explicitly *limited*, and that it’s more common than not for there to be exceptions to all sorts of legal principles.

          Report

  18. In general, I think this debate is kind of annoying, because I don’t like the bill but I don’t like the arguments I’m reading either for or against the bill, so the end result is I find myself tearing my hair out and cursing at everybody.

    That aside, and the rest of the OP aside, I have to take issue with this:

    > 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.

    No it’s not, and yes there is. Worlds of difference. If you’re talking about logical systems theory, a dictate (in order for Agent A to operate inside the system, Agent A must perform action Alpha) isn’t anything at all anywhere near like a process/audit pair (which can be a lot of different forms, such as Agent A pays a penalty Tau if they don’t perform action Alpha inside the system, or Agent B performs action Alpha on behalf of Agent A and taps A for resource Tau, or… well, lots of different forms).

    A dictate is unavoidable. If you don’t do BLAH, we boot you from the system, period. You’re out, game over.

    The reason why I’m pointing this out is because, well, it’s more correct from a process accounting standpoint and I’m anal and pedantic… but also, the nuance has a practical difference for agent autonomy (or what we like to call liberty).

    The rules of the system in which we operate are almost exclusively process & audit pairs. Do this, or that. Don’t do this, or we will do that. But in either case, the audit has to occur for the penalty to be relevant.

    Report

    • If you could cite a non-trivial law in which the federal government makes mere suggestions, with neither carrot nor stick, I’d find your comment more germane.

      In politics, command implies coercion.

      Report

      • That’s not my point, Jason.

        Carrots and sticks are used to coerce people to do stuff, yes. They are both forms of coercion. Coercion is not dictation.

        The distinction is important because you framed your statement as an axiomatic equivalence. Which is wrong. Re-read what you wrote:

        “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.”

        Okay, obvious counterexample. You have the power to punish me for failing to follow the League’s commentary policy. *You can’t make me follow it, though.* If I wanted to, I could fill up the comment thread of every single post on this blog with profane anti-reality ravings. Not only could you not stop me, I’d hazard a guess I could probably win that arms war if I wished and publish more crud than you could erase, effectively killing the blog. I could even do it completely legally. And yet I’m certainly not going to do that. We’re a pretty decent community of folks, so your punishment is just not needed for almost all of the normal activity here. Your punishment works against some of the miscreants on the web, the rest of them don’t come here anyway, so it *acts* like a dictate. But it’s not a dictate.

        You can only dictate if you can (a) leverage a punishment that is so severe nobody will accept the punishment and (b) enforce 1-1 audit, so that nobody can avoid punishment and (c) do both of these without opening any exception scenario in your enforcement mechanism. Which, unsurprisingly, is something that is basically impossible. We don’t live in anything like a totalitarian regime, and even if we *did*, you still don’t get perfectly secure systems *there*.

        I’m only pointing this out because you (and others who are saying that the mandate section are un-Constitutional) are setting all your arguments in a framework that seems to implicitly or explicitly assume this to be true: that all government action is coercion and therefore represents a constraint on liberty. Then you equate coercion with dictation and boom! Dust hands off, the health care debate is dead.

        Well, duh.

        Once you take that “coercion == dictation” step, though, and then start saying that this *particular type of action* is somehow put in a magic box that represents some quantitatively different form of coercion and is therefore “just right out”… uh… why?

        Frankly, I think this is outside the bounds legislation. Not because it “punishes inactivity”. The home mortgage tax credit punishes inactivity – don’t buy a house, you’re paying extra taxes. Don’t wear a safety belt, get a ticket. Don’t cross the street here or there, get a ticket. The number of things that punish inactivity are legion; that Constitutional argument is (IMO) just downright silly if you’re arguing it just on the principle that “legislation that punishes inactivity is unconstitutional”.

        Obviously certain types of “punishing inactivity” are outside the bounds of the Constitution. That’s why we have the Necessary and Proper clause. We’re supposed to be self-governing, for Christ’s sake, we’re supposed to be able to understand that the *system* boundaries are going to change as time goes on. Right now the health care system represents, what, 20% of the economy? Compared to an effective 0% in 1790? That’s a pretty big piece of evidence that it’s both necessary and proper for us to wrap the damn thing in some constraints. Some of those constraints might be default-deny, some might be default-allow… whatever, they’re all just system constraints. They’re *all* going to infringe on somebody’s liberty. They’re *all* going to be backed, at some point and to some degree, by a punishment. For some set of the population, they’re going to operate like a dictate. For some other set of the population, they’re *not*.

        You asked “if we allow the federal government to punish inactivity, what is the limit of their power?” Dude, the Federal government prints the damn money. There is no limit to their power, everything else is a joke. The only real limit to the power of the government is us. The Constitution isn’t a real barrier on federal power any more than the Founders were magicians, (Alien and Sedition Act, anybody?). The Constitution just a piece of paper that has interaction rules on it. A remarkable set of rules, actually… given how many checks and balances that are in it I can’t help but wonder in idle times if Thomas Jefferson, Madison, et. al. ought to be revered more for being safety engineers than political theorists.

        We follow those rules because the alternative is violence, which sucks and it’s a crappy way to transition power (a lesson that several people in the middle east are currently learning, empirically). With these rules we oscillate back and forth around a reasonable form of governance as our axis; we’re probably never going to get there but at least we know it’s likely we’re going to stick inside a reasonable delta where we don’t have to pick up guns and go out and shoot at people in uniforms to get us back to a workable state.

        That tangent aside, it’s perfectly reasonable for me to say that it is outside the bounds legislation because it provides avenues for abuse that historically have been easily leveraged for abuse, it won’t correct the problem that it is intended to correct, and there are other solutions that will do a much better job of the second part with a much smaller likelihood of the first. So while the problem warrants some sort of government action (something is necessary!) this isn’t the right one (no proper, try again!).

        Report

        • The mere fact that the health care mandate won’t be totalitarian is hardly a defense, as I’m sure you are aware.

          Granting the power to command individual economic decisions between private market actors is both new and very troubling, and it would remain so even if those commands were only imperfectly enforced. (Indeed, an imperfectly enforced law is a near-perfect guarantee of discrimination according to invidious categories, as in the War on Drugs, which hurts black people more, even though white people report higher rates of drug use.) This is no defense of the law at all; if anything, it’s a further indictment.

          The Constitution just a piece of paper that has interaction rules on it. A remarkable set of rules, actually… given how many checks and balances that are in it I can’t help but wonder in idle times if Thomas Jefferson, Madison, et. al. ought to be revered more for being safety engineers than political theorists.

          The difference between us is that I would pursue government accountability by demanding that the government actually follow those rules. That’s something the public can do, and that’s something I’ve been attempting here.

          What would you do? Well, you’ve already told us:

          Dude, the Federal government prints the damn money. There is no limit to their power, everything else is a joke.

          In that light, I’m not surprised you don’t find this a productive discussion. Forgive me if I’m not ready to surrender.

          Report

          • > Granting the power to command individual
            > economic decisions between private market
            > actors is both new

            It isn’t new, Jason. It’s *not*. It’s older than dirt! Even the scope of it (everyone within this particular body of government’s sphere of influence) isn’t new.

            Hey, you wanna buy stock? You wanna get a haircut? You wanna drive a car? You wanna sell eggs to your neighbor? You wanna pay someone to watch your kids? There are “commands” (using your “coercion == demand” metric) on *all* of those individual economic decisions. The government “demands” its vigorish. It’s an agent in the transaction.

            What matters isn’t the fact that the coercion is there.

            Nobody gives a crap that kids can’t *legally* operate a lemonade stand in their neighborhood… until someone stuffed government shirt is actually *dumb* enough to try to enforce that coercion. And only then because the penalty is massively out of bounds with the activity!

            Heck, if some health inspector showed up at my kid’s lemonade stand and made a big deal about how they had to operate with an eye to the public health code and talked sternly to them about making sure they washed their hands and gave ’em a crayon-signed “license” they’d think it was awesome and so would I.

            > and very troubling

            It *is* troubling, I agree. The amount of “very” depends upon what market decisions you’re talking about, and how it impacts everybody.

            > and it would remain so even if those commands
            > were only imperfectly enforced.

            And I agree with this, too. It would remain so even if the commands were *perfectly* enforced. So what? You know what else is troubling?

            *Just about everything the government does*. This isn’t a data point that works for either the prosecution or defense. It’s like saying, “Getting out of bed in the morning is risky”.

            > Indeed, an imperfectly enforced law is a near-
            > perfect guarantee of discrimination according
            > to invidious categories, as in the War on Drugs

            I agree with this, too. Even though this means that every law is going to be a near-perfect guarantee of discrimination. There *will* be discriminatory consequences of every piece of legislation that is ever passed, ever. If this is the principle benchmark under which we agree or disagree with legislation, we need to become anarchists.

            I’m not saying it’s a good solution. I’m not saying it’s not troubling. It’s not a good solution and it’s troubling. I’m not saying there won’t be discriminatory side effects. There will be. I find the fact that it’s not a good solution a good reason to argue against it. I think the fact that it’s troubling is only of marginal interest, without discussing degree (and, in this particular case, I think the degree is within epsilon of zero). I find the fact that it’s going to be discriminatory to be a big deal, but again this only matters *in context*. How is it going to be discriminatory? Who is going to be discriminated against? What is the impact of this discrimination? Will it impact the liberty and freedom of those discriminated against in a way that affects them substantively? If not, is the discriminatory effect outweighed by the advantage? I haven’t concerned myself with this aspect of it yet because I don’t think it is as important an argument as, “Well, uh, it’s just not going to work”.

            Stepping aside from this particular discussion a moment: this is illustrative of why I don’t call myself a libertarian (or a liberal or a conservative or a socialist, for that matter).

            You’re giving me a framework argument, Jason. I don’t find it compelling, because I don’t agree that the framework is the only way (or, in this case, even the best way) to examine this particular problem. You’re arguing against it on principle.

            Why not just point out that it’s a dumb way to solve the problem, for the particular reasons *why* it’s a dumb way to solve the problem, and move ahead with finding a better way?

            Report

            • I think we’re rapidly reaching the point where we realize we don’t have much to say to each other, but I’ll answer this one question because it’s very important:

              Why not just point out that it’s a dumb way to solve the problem, for the particular reasons *why* it’s a dumb way to solve the problem, and move ahead with finding a better way?

              What I’m doing here, in this particular post, is I’m trying to explain why the sort of limits I think our constitution contains are defensible according to a particular theory of justice — essentially, the Hayekian one, although I don’t say so outright.

              I have said elsewhere why I don’t think the measure is a good one on purely pragmatic grounds. In particular, I don’t expect it to make Americans much healthier in the aggregate; I expect it will cost more and more as the years go on, and far more than projected; and I don’t expect that it will be possible ever to get rid of it.

              In fact, rereading that post from last March, I’m struck by another thing: Even then, I was saying that single-payer sounded like a better idea than the one we are now implementing. Not that I’m thrilled about it, but accusing me of not weighing the alternatives looks less justified than even I had recalled.

              Report

              • Turning your criticisms on their heads a bit:

                1. If single payer is better, I don’t see this reform making that tougher. You can create a single payer system in the same way the Transcontinental Railroad was built, from both ends in. Continue to expand Medicaid to cover more from the poor end and push Medicare down to younger populations. The advantage in this bill, though, is that if this doesn’t work you’re not locked into it. The US may simply remain a country where most people who aren’t on Medicare will get their coverage from employers or it may become a country where people will shop individually for private plans with gov’t help for those who can’t afford it. Since the most honest stance is to say ‘we really don’t know’ it’s better to leave all these options open rather than to do a blanket policy (like single payer) today that wipes out everything we have. If that works then that’s great but if it creates a huge mess going back will be all the harder.

                This I think is the problem with people who complain about how complicated the bill is. The bill is complicated because its conservative in the sense that it seeks change but not radical change. A plan like single payer could probably be done in a much simplier bill but it would hardly be simple in its implications.

                2. In terms of not making people healthier but adding expense, I guess I have to ask why? Private insurance is competiting against itself. Why would it pay doctors and other providers more and more for less? Is it because people who aren’t covered now will become covered? OK but then what are those people doing today? Are they going without needed treatment? If so then it seems unethical to keep a status quo predicated on people who need treatments unable to get them because they happen to be unlucky. If not then why would private insurance companies competiting against each other be willing to pay for treatments that are unnecessary thereby raising costs?

                3. “What I’m doing here, in this particular post, is I’m trying to explain why the sort of limits I think our constitution contains are defensible according to a particular theory of justice — essentially, the Hayekian one, although I don’t say so outright.”

                Maybe I missed some of your arguments but I haven’t seen any theory of justice presented in the arguments over the ‘individual mandate’. I’ve seen arguments about theories of semantics which is basically what the Constitutional arguments boil down too. That was revealed when those arguing the bill is unconstitutional basically said that the exact same policy would be Constitutional if the wording was done differently.

                Report

              • > Not that I’m thrilled about it, but accusing me
                > of not weighing the alternatives looks less
                > justified than even I had recalled.

                Hey, that was last March :) One of the problems with blogging (as opposed to having someone consume your content in book form) is that you can’t be sure that I’ve actually *read* your older stuff.

                I’ll look at the old post.

                Report

                • One of the problems with blogging (as opposed to having someone consume your content in book form) is that you can’t be sure that I’ve actually *read* your older stuff.

                  Please understand, there are folks out there who are more than willing to say something like “you slag on this policy without ever even *SUGGESTING* an alternative!” in their first five minutes of their first visit to the site.

                  There are folks who, of course, did slag on the policy without suggesting an alternative (“we need to put out the fire!” “But what will we replace it with?” being a fun argument they used) but a lotta folks here were more than willing to list things that would be better than what passed… and, even if “nothing” was the only entry on the list, if they thought that the policy was “worse than nothing”, I don’t see why that’s a criticism with half of the heft its adherents think it does… and it’s got none at all when it comes to many folks on the site who made lists a lot more robust than the one with only “nothing” on it.

                  (But that’s reason to celebrate! You can now argue that their suggestions were not politically feasible! You don’t even have to have read them to make this criticism!)

                  Report

        • “If I wanted to, I could fill up the comment thread of every single post on this blog with profane anti-reality ravings.”

          No, you can’t. The comment system tracks IP addresses; it can search and delete by IP, and ban IPs from posting. (Don’t you remember that whole business a few weeks ago?)

          You could be a pain in the ass for a while, but you can’t “wreck the blog”.

          *******

          You’re correct that you can’t be compelled against your actual will to follow the comment policy, or indeed any law at all. You can always say “my behavior is an entirely voluntary decision made in order to avoid punishment” if it makes you feel better to look at it like that.

          But all this does is move the goalposts from “can the government compel you to purchase a product from a private seller” to “can the government punish you if you do not purchase a product from a private seller”. You don’t actually change the problem; you just put a different shirt on it.

          Report

          • > No, you can’t. The comment system tracks IP
            > addresses; it can search and delete by IP, and
            > ban IPs from posting.

            Yes, I can. I don’t feel it necessary to demonstrate this, mostly because this is like asking a guy who has an actual nuclear weapon to prove it by setting it off :) Just about anybody can figure out how to do this.

            That will stop me… not at all. Spoofing an IP address is a trivial exercise. Even if it wasn’t, there are 104 open network connections that I know of within a 2 mile radius of my current position, which come from several different netblocks. You could block by netblock, I suppose, and cut off several large swaths of southern California from accessing this blog. Not that this could stop me :)

            If they figured out how to block me based upon route, rather than source IP, I can take any one of a number of billion different methods of obscuring my route.

            Hell, I could just use TOR.

            If I was willing to take an illegal route, I can rent a botnet for about $5/hr that’s capable of just DDOSing the site.

            Taking a site down (or at any rate making yourself enough of a nuisance that the other side quits) isn’t difficult at all.

            Report

            • So then you’re saying that the admins don’t actually have the power to punish you? That kind of takes away the support behind your argument (which, you are saying, is that “the power to punish is NOT the power to command”)

              Report

              • That depends upon how you define “punish”. If you’re talking about social opprobrium, then yes of course they do.

                If you’re talking about “revoking my ability to actually post to the blog”, no, they really don’t.

                And, uh, if you think that takes away my point, okay… I guess. Knock yourself out.

                Report

          • > But all this does is move the goalposts from
            > “can the government compel you to purchase
            > a product from a private seller” to “can the
            > government punish you if you do not purchase
            > a product from a private seller”. You don’t
            > actually change the problem; you just put a
            > different shirt on it.

            Dude, the government *does* punish me if I don’t purchase a product from a private seller. I’m legally required to have automobile insurance in the State of California.

            And here comes the tired counter, “That’s only if you want to drive! That’s different!”

            Yes, it is different. In *degree*. Not in *principle*. This whole kerfluffle over “everyone has to do it, with very few exceptions” vs…. uh, “everyone has to do it, with very few exceptions” is hugely silly.

            Report

            • …Actually, no, it is different in principle, because you do not HAVE to own a car.

              “Well you pretty much DO have to–” no. You can take the bus, you can ride a bike, you can walk. Yes, these things may be difficult and inconvenient, but where’s the equivalent alternative in the health-care debate? The alternative to health is dead. That’s not a matter of degree.

              Report

              • Do you have to engage in economic activity?

                Can you live in this country without buying or selling anything?

                Can you live in this country without being employed? If I’m not employed, I make no income and I can file all the returns I want, I don’t have to pay any taxes.

                I’m sure you can, much like you can live without a car. Are we going down that road?

                Report

            • Pat,

              That’s not a tired counter, it’s a reality. I lived in California without a car–it’s easy if you choose to live in the right place (I lived in San Fran). Choose to live in a different place and you will need a car, but you chose to live there. The mandate to buy car insurance is based on your choosing to take certain actions.

              The mandate to buy health insurance is based on the very fact that I am alive.

              OK, I guess we can say it’s based on choosing to take the action of waking up each day instead of taking the bottle of sleeping pills at night, but somehow that just doesn’t really seem analogous to me.

              Report

              • James, you don’t have to have health insurance. You don’t even have to have health insurance and pay the penalty. Just don’t earn a living. You don’t *have* to learn a living, any more than I *have* to own a car. You can barter. You can live with the under-the-drains people in Vegas and eat freetarian.

                In fact, there’s a very large unemployed don’t pay any taxes and don’t make income population here in Los Angeles.

                Yes, it’s ridiculous. So what? What makes that any less of a valid objection than “you don’t *have* to own a car”?

                My point is, they’re all impositions on liberty, *even if they don’t affect you because you choose to live a life where they don’t affect you*.

                Arguing that this is not an appropriate imposition on liberty seems like a decent argument to me. Throwing it all down on the “inaction” vs “action” concept seems, well, dubious. Certainly from a pure logic perspective. Definitely from a political theory perspective. And even debatably (as has been pointed out elsewhere on this thread) from a legal perspective.

                Report

                • “[Y]ou don’t have to have health insurance.”

                  According to Obamacare, yes you do. Unemployed people get Medicaid, the rest of us have to pay for insurance–maybe through our employer’s group coverage, maybe bought on the open market, but if we do not have health insurance then we are charged a fine.

                  Report

              • The law does say you have to have minimum health coverage. But it doesn’t say you have to purchase private insurance. It says *if you make a certain amount of money*, you have to purchase a qualifying health insurance policy or else pay a penalty. If that is a command, then that is a command. But it also says that if you make less than that certain amount of money, your state has to provide you with a public health coverage plan (and you have to sign up for it.) So the mandate to *buy* *private* health insurance is not based on the very fact that we are alive; it is dependent on whether we live at a particular level of affluence or not.

                Report

  19. Jason wrote:

    Now that we can incur such obligations — where do they end?

    I, for one, think everyone should be required to buy marital aids. We can have a tax rebate for those who do.

    Re: The Mortgage exemption example: Bad example. No additional tax is imposed if you don’t buy a house, whereas an additional tax is imposed if you don’t buy health insurance. There is an important distinction between offering a deduction from the generally applicable rate and requiring payment in addition to the generally applicable rate.

    Report

    • Well, the point he was going for is that if it weren’t for the mortgage exemption, then our taxes would be lower overall (as we wouldn’t have to “pay” for the exemptions.)

      Which is true, to some extent, but you could make that argument about any tax at all. As I said, this viewpoint eventually turns into “taxes are a penalty paid for not receiving government benefits”, and I don’t think that’s what Boonton actually wanted to say…

      Report

      • The distinction is between being granted the privilege of paying less in taxes and being assessed a tax penalty that requires you to pay more in taxes.

        The decision to not buy a house (or to buy one for cash) does not result in any tax penalty–your taxes remain the same. The decision to not purchase insurance does result in a tax penalty–your taxes increase.

        It’s the distinction between a carrot and a stick, between reward and punishment. Perhaps that distinction’s not fashionable anymore? Then no one will mind if instead of offering you cash to sing my praises I will beat you for not doing so? Apparently there’s no difference there?

        Report

        • > The decision to not buy a house (or to buy one
          > for cash) does not result in any tax penalty

          Sure it does.

          Ridiculous “necessity” debate elsewhere aside, I think we can both agree that you need someplace resembling a domicile to park your carcass out of the weather, yes?

          If you’re budgeting for this purpose, and you’re choosing between renting and buying, do you not include your tax break in your economic analysis in determining whether to buy or rent? I sure did. Heck, if you buy a house and pay cash you’re likely insane in this market; money is still at a laughably low price on a 30 year fixed.

          If I’m renting a comparable house in my neighborhood, I’m burning about a thousand dollars a month over what I’m paying out of my yearly income in housing if I buy and have a mortgage. Some of that is the difference between the rent rate (which is still completely out of whack here in Pasadena) and the monthly mortgage payment. Some of it is the effective difference in my taxable income.

          That’s an effective tax penalty, at least in my book. It’s also certainly a penalty according to the financial accounting professors in business school; if your corporate executives weren’t leveraging every tax advantage they could, they’d be paying that legendary monstrously high corporate income tax rate and I’d be getting less retained earnings and somebody would be getting fired.

          Report

          • Ah, Mr. Cahalan. You mean like the “marriage penalty,” which is rhetorically accurate, but legally is not. That’s why the honest correspondent is obliged to use “scare quotes” around “marriage penalty,” lest he risk it being taken as a literal assertion of fact, not rhetorical shorthand.

            http://en.wikipedia.org/wiki/Marriage_penalty

            The equivocation of terms is of course the art of sophistry. We are getting quite an education in this ancient art hereabouts lately.

            Report

            • (sigh). Sophistry? Really?

              Okay, so I guess you’re saying that you don’t take into account tax law and effective cash flow of your own checking account when making your own financial decisions.

              For what it’s worth, it’s my understanding that if you’re doing the books for a public corporation and you don’t account for your tax expenditures *just like this*, you’re in violation of generally accepted accounting practices.

              Report

            • That’s a really odd link for you to throw out, since it states pretty baldly:

              “While income averaging might still benefit a married couple with a stay-at-home spouse, such averaging would cause a married couple with roughly equal personal incomes to pay more total tax than they would as two single persons.”

              Sounds an awful lot like a penalty to me, m’friend. It certainly is one in my case.

              Report

  20. Pardon me for skipping over 75 comments, but Jason’t pre-emptive arguments were as valid as the pre-emptive strike against Saddam in 2003 because of his vast stockpiles of WMD’s/because it’d be easy because he’s weak/to liberate his people/because they attacked us/because we needed to kill a whole mess o’ Ayrabz to intimidate others.

    Jason:

    “If being insured really is that important, there must be other ways to do it. ”

    We’ve tried, and generally have failed.

    “The fact that Republicans didn’t come up with any alternatives doesn’t make what we’ve gotten even a tiny bit better. ”

    Well, it does, because (a) it’s better than the status quo and (b) because even getting that (i.e., something which relied on many of the GOP ideas from the mid-90’s) took a collossal effort and vast luck to squeak through. After 15 years where the GOP had many chances, and did squat.

    “No, I didn’t particularly like the status quo. There were sensible ways of fixing it. We should try them. ”

    (a) We did, and (b) the right had fought, fought and will fight 100% against fixing the status quo.

    I have to ask you, Jason – did you pay attention in 2009? Are you aware that the GOP talked a big game while defeating the Clinton proposal in ’93, and then did nothing, even in the years when they had beaucoup clout?

    Report

    • So it’s not actually that great but it’s better and that’s the important thing?

      It seems like this is a case where ‘good enough’ is the enemy of ‘perfect’…

      Report

      • It seems like this is a case where ‘good enough’ is the enemy of ‘perfect’…

        This captures a lot about the thinking of people who resist what is possible by suggesting that something else might be just… perfect!

        The perfect always remains a possibility that hasn’t been foreclosed… so long as you have in fact tried nothing.

        Report

      • DensityDuck February 3, 2011 at 10:41 am
        “So it’s not actually that great but it’s better and that’s the important thing? ”

        It’s not great, it’s good, and a significant improvement on the extremely-well defended status quo.

        Report

        • Barry:

          Obamacare may be better than the status quo to some, however that in and of itself does not make it constitutional. I’d also add that even if Repubs had suggested some similar in the past it would still be unconstitutional and I for one would not have supported them doing it either.

          Report

  21. How many waivers have been given for Congress’s Affordable Care Act so far?

    Is that relevant to whether the law is good or not?
    If not, when will it be relevant?

    Report

    • The question is how big the waivers are.

      The acceptable plans have pretty tight requirements, and it’s entirely possible that one or two of the rules aren’t a good idea and basically everyone needs a wavier for that rule. Or all unions do, because all union plans do that in some other way. Or all HMOs, or all whatevers. (Or, better, that rule needs changing…but good luck getting that past this Congress.)

      That’s not really a problem. Often small portions of the law are found to be unworkable. I would really rather the rulemaking was in an executive department instead of Congress, but whatever.

      Now, if there are waivers being granted to plans that fall far, or even moderately, short of the requirements, it might be time to start rethinking things. Either those requirements are required, or they aren’t. If those plans are good enough, they should be available to all companies to offer. If they aren’t, they shouldn’t be available at all. (Or, rather, shouldn’t count as a plan under the law. Nothing stops people from buying plans that aren’t acceptable, as long as they’re willing to pay the tax penalty.)

      The article has no facts about which kind the waivers are, how the existing plans fell short, which forces me to assume the facts are the least convenient to their argument, and that the waivers were for trivial things. Does anyone have more info? Aren’t union health care plans supposed to be pretty good? Why do they not fit the requirements?

      Report

              • A “free rider” is someone who uses more than his or her “share” and it will likely result in the pool getting used up because it hasn’t been paid for (or it isn’t sustainable in the long term).

                Right?

                I don’t see how “intent” changes that dynamic one iota.

                Report

                • Typically, communal action of any sort assumes that there are people who won’t be able to participate to the same degree as others.

                  If the system is designed with this as part of the engineering principles, then the person who cannot participate to the same degree for the reasons specified in the design principles isn’t properly a free rider.

                  I’ll quote Wikipedia: “In economics, collective bargaining, psychology, and political science, “free riders” are those who consume more than their fair share of a public resource, or shoulder less than a fair share of the costs of its production”

                  The “fair” part is the part we’re talking about. We’re not talking about “equitable” shares of the commons, we’re talking about “fair” shares of the commons (or whatever).

                  If someone is taking resources out of the system when they’re not entitled to do so, they’re free riders. If someone is intentionally abusing the mis-match between design and implementation to take more out of the system than they’re entitled to, they’re free riders. If someone is unable to contribute to the resource pool of the system (but this is supposed to be compensated for *by design*), then they’re not free riders. They are taking only their fair share.

                  Report

        • That’s not what waivers are for. No _person_ is getting a waiver. (If so, um, 139 waivers would be an impossibly low amount and not worth even mentioning. There are more people than that walking around who don’t actually exist and are wit protection identities and CIA covers for other people, and presumably do not need two insurance plans.)

          Waivers are for _plans_. Plans must meet specific standards to be counted under the law. Most companies are just going to have their plan magically change under them as insurance companies stop offering ‘invalid’ plans, which is why the law takes so long to come into effect.

          The problem is that union-negotiated contract has a minimum exact contract it has to follow, and they probably have a deal with the insurance company that the insurance company can’t change it. Because then the insurance company could change it where the stuff the company is required, by union contract, to buy, requires them to buy a very high-end plan with 99% they don’t need for the 1% they do.

          Sadly, this allows the employer to now hold _unions_ over a barrel if the plan is even slightly short. The insurance company can’t modify it to fit under the law without permission, so if even one tiny part is out, if the plan has a $60 deductible when the law requires $50, the employer can force the union to renegotiate the contact _or_ every single union member has to pay the ‘uncovered’ fine like they don’t have health insurance.

          And while normal health insurance contracts are up each year or two, union contracts can be for a decade, so the employers can say ‘Oh, but you only demanded a $60 deductible, so that’s what we’re providing the next 8 years. Sucks that under the law you don’t have enough insurance to avoid the fine.’

          So unions are getting waivers for the plans, which, as I said, is reasonable if the plans comply 95% or so.

          The question is, is this true? Are these ‘almost good enough’ plans that will just be renegotiated next contract negotiation to be correct, or are unions somehow being allowed to get away with providing crappy insurance?

          Report

            • Sounds like it, do you know any insurance company that cuts a ‘foreever’ health insurance plan? I would imagine as plans expire and new ones are created the choice would be either adopt one that meet’s all the requirements or apply for a brand new waiver.

              More importantly what exactly is the issue with waivers? Why should one get upset at the news that lots of waivers have been granted absent any other context? This is hardly the first law that has waivers as a feature, Medicaid and Medicare has lots of them and it seems they can be very helpful in providing some flexibility to try something creative without having to negotiate a new bill.

              Report

            • I have no idea, all the right-wing articles that mentions the ‘Obama is giving waivers to all his cronies’ (Like Obama has ever even personally touched one of these waivers and the decision wasn’t made six levels down from him.) story seems utterly unable to state what the waivers are for, or how long, or if they’re giant ‘These guys can do whatever they want forever’ waivers or just ‘$10 too high deductible for broken bones for the next five years’ waivers.

              And the actual media has no picked up the ‘story’, probably because, as Boonton said below, this is not actually a ‘story’ at all.

              I urge everyone to operate under the assumption all the time, or at least WRT politics, that any information that is not common knowledge, but should be known to the person writing the article, that _could_ render an entire political argument moot, but is inexplicably not included in the article making that argument, in fact _does_ render that argument moot.

              Report

  22. Jason, you find this disturbing (and unprecedented), but I’m still not clear why. It is described as a penalty in the bill, though it had been described as a tax until the wording changed at just about the last minute. Would you find it as disturbing if it were still described as a tax (note: the wording changed, for political reasons, but the structure of the bill remained exactly the same, so the tax and penalty are the same thing called by different names)? Do you find tax breaks for homeowners equally disturbing? What about tax advantages related to marriage? Is it just the word “penalty” in the bill that you find disturbing or unprecedented? Because, while there are plenty of cases where the government compels action, it usually does so with tax breaks, not “penalties” (by the way, this, I would argue, is where you, not the bill’s proponents, are confused).

    Report

    • Chris,

      A tax break is not the same as a tax punishment. If my city wanted me to paint my house purple, and offered me a tax break for doing so, that would be different than imposing a fine of some sort for not doing so.

      Do you ever offer students extra credit? Do you see that as the same as reducing their grade if they don’t do something?

      Report

  23. Pingback: Stones Cry Out - If they keep silent… » Things Heard: e159v5

  24. Pingback: Friday Highlights | Pseudo-Polymath

Comments are closed.