Saturday, October 15, 2011
Why the Individual Mandate is Still Unprecedented
Since the Constitution explicitly authorizes the Congress to "provide for organizing, arming and disciplinary the Militia," it is hard to see how it would matter, even if it were a mandate.
MLS: I don't understand your point. The Constitution also explicitly authorizes Congress "To regulate Commerce . . . among the several States." In neither case, though, does the text tell us whether Congress can exercise its power by compelling individuals to purchase a good; that's the question in the current litigation.
But congress absolutely has done something like this before. It hasn't created a criminal penalty for failure to purchase insurance. What it has done is increased your taxes if you don't. Surely no one is going to argue that congress doesn't have the power to levy a tax, and the Court's precedent in Wickard shows that the government can force someone to enter the stream of interstate commerce, either through taxes or through fines and penalties.
If someone wants to argue that the individual mandate is unconstitutional, they need to argue why it's not a tax.
Critics of the law sometimes argue that the requirement (not called a "mandate" as such) is separate from the tax penalty in place to enforce it. They need to do this since they are reminded that w/o various things (such as a certain income), there is -- as in 1792 -- no actual penalty for non-performance.
The "mandate" is there in both cases. The novelty is an enforcement mechanism, which is a lot easier to defend, if the basic power is there in the first place.
The idea Congress can never require a person to buy something from a private vendor is a weak argument. I need to buy such things to serve on federal jury duty. I need clothes, a means to get to the courthouse and so forth. It is a frivilous claim to suggest -- even if the 1792 law didn't have teeth -- the gov't can't require a person to buy a uniform to serve in the militia.
So, the argument than becomes that somehow enforcing interstate commerce regulation is different, which tends to be a matter of "it wasn't done this way before," forgetting that even the draft was controversial into the 20th Century.
Or, some overly nuanced argument that is a lot harder to make than the quick slogans tossed around by opponents. So, I say, continue using the 1792 precedent.
jacobadenbaum: My post is about the specific question of whether Congress has ever before mandated a private purchase, a question that has been at issue in the litigation. Congress might well be able to tax individuals who do not purchase health insurance but that's a separate question; there is a dispute in the cases as to whether the healthcare mandate is actually an exercise of Congress's taxing power or must be examined solely as an exercise of Congress's Commerce Clause power. As for Wickard, I'm not sure what you mean by "compelled to enter the stream of commerce" but the farmer in the case wasn't compelled to purchase anything: he could simply lower his wheat consumption or substitute the wheat with something else (or stop growing wheat altogether for that matter). So we're still left with the question of whether Congress has ever before required Americans to purchase something. The Militia Act isn't an example of that.
Joe, You are right that there is a question as to whether and why it matters for determining the scope of Congress's power whether or not there is some precedent in place (different people have different views on that issue). But that's a separate issue from the question of whether there is a precedent. You are also right that for certain people (those without income or those who do not have to file a tax return) there is no effective means for the government to collect the penalty for failure to maintain coverage. But that still leaves a penalty collected by the IRS on the incomes of tax-filers who lack the requisite coverage. There was no parallel to that in the 1792 Militia Act.
The basic point is that there IS a precedent for a requirement (all those "shalls" underline the point).
Your point is that there is no precedent for an actual federal enforcement mechanism. The presence of the "mandate" remains; even under your analysis, it had some real effect, even if it was underenforced.
The precedent of an actual federal individual responsibility requirement carries a lot of water since if it was legitimate, some sort of enabling legislation must be as well.
And, whatever the proper reach of that enabling legislation is, some sort of requirement to purchase a private good (even w/o the avoidance mechanisms possible here) is rather easy to defend.
Others can add their .02, but one more thing. The fact that states were left with the duty to enforce is seen in other areas. Take the federal draft. During the Civil War, the federal government was loathe to press the point. First, it called forth state militia. Only if states did not provide enough, did it draft, using a relatively weak one at that. In time, something like that could have been in place here too. If states did not do enough, let's say during the War of 1812, to enforce the law, further federal action might have been submitted.
The underlining principle is what matters: the power to put forth a mandate of some sort. That is over half the battle. So, as with Jacob, I don't quite see the point of not raising the precedent.
Joe, I don't think your argument works. The penalty is being challenged: the litigants don't want to have to pay a tax penalty for failing to maintain coverage. On your analysis, nobody should care if the Supreme Court holds that the coverage provision is constitutional but the penalty provision is not. I don't predict the administration will advocate that outcome. And whether or not members of Congress in 1792 thought they could enact "enabling legislation" is a different question from the one I am interested in, which is whether Congress did enact enabling legislation. The answer to that is no.
I didn't say "no one should care." I separated the mandate from the enforcement. So, it matters.
A basic argument is made that the government cannot "mandate" citizens to do something. Okay? The law you cite is a precedent for that.
The law said people "shall" do something. The law had real effect. The states didn't pass those requirements simply out of good will. I assume the law had some effect in that department.
The feds can't say people "shall" worship in churches even if there is no penalty involved. The penalty gives the litigants here standing, but the fundamental point is that the feds shouldn't be mandating citizens to purchase stuff.
Whatever you are interested in, which is fine, that makes it sensible for defenders to bring the precedent up.
"It hasn't created a criminal penalty for failure to purchase insurance. What it has done is increased your taxes if you don't."
The only problem with that argument is that they specifically said, in the law, that it wasn't a tax, it was a penalty. If the Court is going to mindlessly pretend penalties are taxes, if Congress decides to call them taxes, the flip side is that, if they call the penalty a penalty, the Court gets to take them at their word.
My argument is that the Militia Clause is an entirely separate grant of power to Congress, with very different language and, I suspect, very different history. The power to “provide for organizing, arming, and disciplining, the Militia” must include the power to ensure that every individual who is part of the Militia has a weapon. Now I suppose that it doesn’t necessarily mean that Congress has the power to mandate that each individual purchase the weapon himself, but it makes perfect sense, even without the example you cite, that this would be understood as the most practicable way of achieving that objective.
But the fact that Congress has the power to mandate the purchase of weapons under a provision specifically aimed at arming the Militia has no bearing whatsoever, as far as I can see, on whether the Congress has the power to mandate the purchase of everything else under a provision to “regulate Commerce . . . among the several States.” If anything, the former power would seem to cut against the existence of the latter, since there would be no reason to provide for arming of the Militia if the Commerce Clause already gave Congress the power to compel everyone, whether or not in the Militia, to purchase weapons.
To give another example, I assume that Congress has the power to mandate that members of the Militia engage in periodic training and could require that training to include physical exercise to ensure that they are combat-ready. Does it follow that Congress can mandate that all citizens engage in physical exercise as part of its Commerce Clause power? I just don’t see how one has any bearing on the other.
Didn't the 1798 "Act for Relief of Sick & Disabled Seamen" mandate that privately employed sailors purchase health care insurance?
The Militia and Commerce Clauses are fundamentally different provisions.
The MC is a pretty open ended grant of affirmative power to form and maintain a militia. There Is no textual limit against Congress requiring militia members to arm themselves.
Conversely, the CC is a grant of negative power to regulate or limit preexisting interstate commerce. There is no textual grant of affirmative power to compel anyone to engage in the commerce desired by Congress.
The 1792 law was somewhat controversial. It made 'perfect sense' to some people, not others.
The argument here is not some power to regulate the purchase of 'everything else' but requiring certain people to have insurance and then be required to pay a tax if something else is involved such as income. It is a specific requirement that like purchase of military supplies is tied to the power in question.
The relevance is that some claim the government never mandated purchase. Untrue. We can then show how one provision empowers different things. But, as with the lack of enforcement, that is a separate concern. People are talking past each other here.
Brett, not only is the tax system used to collect it, it is reliant on income like an income tax, but repeatedly, as far back as the 1860s, stuff that acts like a tax but is not expressly called one, like fees, was treated as taxes.
If this sort of word game is played in a different situation, I wouldn't be surprised if you would be against it as such. The word 'penalty' like the well known 'marriage penalty' is a description. It is a tax penalty.
But, Joe, the actual legislation called it a penalty.
Again, I repeat: If the Court is obligated to pretend a penalty is really a tax, just because Congress calls it a tax, then if Congress calls the penalty a "penalty", is not the Court obligated to treat it as a penalty, not a tax?
Brett, the courts should and has looked at how the legislation actually works.
This legislation works as a (two words) tax penalty. Taxes -- see Art. I. -- can be applied to pay debts, promote the general welfare or common defense. This one does at least two. It collects revenue and promotes the general welfare.
How is it collected? I have looked at the law and the relevent portions are connected to the tax system. Payment is generally reliant on your income, like an income tax, and/or based on certain activities, like an excise tax. Other means of collection was purposely denied.
Jack Balkin et. al. defended it as a tax when it was under consideration. The government, when needed, defends it as a tax. Politically, 'read my lips' it's best not to do that. But, we are adults here, so we know a tax when we see it, even if some other word is used. Unless, we want to "pretend" otherwise.
Jason, if you are looking for further support that the 1792 National Militia Act and the Individual Mandate are not one in the same, see my article "The 1792 National Militia Act, the Second Amendment, and Individual Militia Rights" in the Georgetown Journal of Law and Public Policy. It can be downloaded here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1705564.
As you will see, you are correct that the Militia Act had no enforcement mechanism for "arming." This was deemed a State issue, and was confirmed by mulitiple Congresses.
However, I will say that this does not completely dispel the constitutionality of the individual mandate. If one follows John Marshall and Alexander Addison's legal analysis on the Necessary and Proper Clause, the mandate is arguably constitutional. That is another debate for another post...
As other commenters have said, this post is pure stawman bashing, since there are hundreds of other conditional taxes that are economically identical to the ACA.
And, as I've also argued many many times, the ACA does the *exact* same thing as an existing federal statute, 26 USC 106: impose a higher tax on those who fail to purchase health insurance. That Congress called it a "tax" in 45 places and a "penalty" in a dozen others doesn't really seem to change the basic economics. And considering that the baseline rule is that Congress doesn't have to label something a "tax" to invoke its taxing power, it's not clear why the choice of label has any meaning at all.
So I think if you want to advance the conversation, it would be useful to engage with some of those points.
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