The legal case against Obamacare is ridiculous

As far as I can tell, the legal case against the Affordable Care Act (Obamacare) is based on a string of technicalities, half-truths and strange distinctions. Very little of it appears to be based in reality or on previous case law, for that matter. Bear with me as I lay out just how crazy it would be to strike down this law. Here are the charges Republicans have brought against health care reform:

  • They argue that the individual mandate is not a tax, (as it certainly appears to be) but some form of legal coercion distinct from Congress’ taxation powers.
  • Building off that, they argue that Congress does not have the power to coerce people into buying health insurace. Congress, they claim, only has the power to regulate economic activity, not economic inactivity. They say that the decision not to buy health insurance is an example of economic inactivity.
  • Finally, they argue that there is no “limiting principle” behind Congress’ use of the “Commerce clause”  to enact the individual mandate. In other words, if Congress can force you to buy health insurance, they can make you do anything  and that is against the principle of a limited government.

All of these claims are bogus to some degree or another. Here’s why:

Wait, the individual mandate isn’t a tax?

The individual mandate is the common name for the part of the ACA that is meant to pressure the uninsured into buying insurance. It is a tax penalty equal to $695 or 2.5% of your income, whichever is greater. If you have enough money but still choose not to buy health insurance (starting in 2014), then this penalty will be added to your tax return and will be collected by the IRS.

For the life of me, I can’t figure out why this isn’t a tax. The mandate’s challengers allege that it would have been Constitutional if Congress had raised everyone’s taxes by $695 and then given a rebate to every person that gets health insurance. Then, only people without health insurance have to pay the extra tax. But that’s just a more roundabout way of doing  exactly what the individual mandate does! As even this blogger from The American Conservative agrees, the mandate clearly is a tax. But at the Supreme Court we heard this exchange:

JUSTICE SOTOMAYOR: Here we have one where the Congress is not denominating it as a tax; it’s denominating it as a penalty.

MR. LONG: That’s — that’s absolutely right, and that’s obviously why, if it were called a tax, there would be absolutely no question that the Anti-Injunction Act applies.

Ah, so the problem is that Congress didn’t specifically call the mandate a “tax,” they called it a “penalty.” Well, that’s an open-and-shut case. Courts obviously can’t be expected to use their own powers of deduction and logic to conclude that something is a tax, when its not explicitly called that…… O wait, they do that kind of thing all the time. AND there’s even a Supreme Court decision saying:

In a 1941 decision on “the constitutionality of a tax law,” the Supreme Court ruled that it was “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.”

If it walks like a tax, talks like a tax and acts like a tax, then it IS a tax and the Supreme Court is allowed to say so. Except when it doesn’t want to for some reason.

“Economic inactivity”- I wonder if this is a well-founded legal doctrine?

If the mandate isn’t a tax, then it has to be justified under Congress’ powers outlined in the Commerce clause of the Constitution, which reads:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States…

As established by the Supreme Court in Wicker v Filburn, Congress even has the power to regulate private economic activities which are never intended to cross state lines or to enter into the open market, as long as it is part of a broad national regulatory scheme. But the law’s opponents claim that this is something different. Conservative scholars claim that instead of Congress regulating someone’s actions, here it is regulating their inaction.

The court has never upheld a federal law that punishes Americans for exercising their God-given right to do absolutely nothing. Even the furthest reaches of the Commerce Clause have extended only to affirmative actions, such as growing wheat or possessing illegal drugs.

Of course, the Supreme Court has never held that there is a difference between “economic activity” and “economic  inactivity.” After all, what would be the point of regulating someone who was economically inactive? There would be no point, and that’s not what the individual mandate does. It regulates how people will pay for the medical care that they will eventually receive. Everyone, by virtue of their mortality, eventually will be active in the health care market. No one can predict when a disease will strike or how much it will cost. That’s why everyone needs insurance. Care isn’t free, everyone will need it, and if you aren’t paying for your own care, the rest of us are.  The individual mandate was put into place to say: either pay for your own care (buy insurance) or pay us a penalty to cover your care for you.

The opponents of health care reform have conceded that Congress could force people to buy insurance at the moment they enter the doctor’s office, hospital or ambulance with a severe disease. But of course, that’s not how insurance works. Can you buy life insurance on your death bed? Can you buy car insurance after you’ve already gotten in a wreck? Of course not. If Congress can require insurance when it would do no good, then they can require it when it would do some good. No one is immune from having an accident and being rushed to the hospital at any moment. No one is “economically inactive” in the health care market.

Limiting Principles for Some. Guaranteed health care for none!

So now that the Supreme Court has established that the mandate isn’t a tax (wink, wink) and that there are all these people in America who want nothing more than to be free from the burdens of life-saving medicine, we arrive at our last problem with health care reform: if the Court let’s Congress do this, they can get away with anything! Jonathan Chait tackles that problem here:

If Congress can force you to purchase health insurance, why can’t it make you buy broccoli, or anything at all? (And since this would be bad, then obviously Congress can’t be allowed to make you buy health insurance.)

There are many possible ways to solve this objection, if a Justice were so inclined to look for them. Health insurance is inherently different from almost any other product, with inherent problems of cost-shifting and adverse selection. (The economics of this seem to be utterly eluding the conservative justices.)

In other words, your decision to not eat broccoli doesn’t directly financially burden anyone else, but your decision not to buy health insurance does. A broccoli mandate would not be necessary or proper to solving a major national problem, the individual mandate is. But as Chait goes on to point out, there aren’t “limiting principles” in a lot of Congress’ powers:

As Akil Amar notes, if Congress can tax income it could tax income at 100% percent. If you can conscript 18-year-olds into the army, you can conscript them for 25-year terms like the Czars did. You could put them into the Army Corps of Engineers and turn them into a vast pool of government slave labor. But such hypothetical possibilities don’t normally dominate jurisprudence the way they have at the Court this week.

There are not well-defined limits on a lot of  things Congress and the President are allowed to do, and for good reason. Sometimes problems or needs arise and people expect their government to be able to solve them in new ways. How about we worry about the validity of broccoli or gym membership mandates when Congress actually passes something that stupid. And besides that fact, defenders of the law, like President Reagan’s former Solicitor General, can offer limiting principles for this power.

Conclusion

So there you have it. There is an unusually weak case against Obamacare which the Supreme court is taking unusually seriously. The fact that this law could get thrown out shows us the utter ridiculousness in this case:

  • No one argues that it would be unconstitutional for Congress to impose a single-payer, government-run health care plan on America. But a moderate plan that preserves the free market while making badly needed reforms in a broken system? That’s a bridge too far.
  • This case would be over if instead of the word “penalty” in the law, it read “tax.”
  • The Supreme Court is actually considering striking down a 2,000 page law with hundreds of mostly unrelated, moving parts becauseone of those parts may be constitutionally defective.
  • The Supreme Court is putting the right of a few million people to burden the rest of society with their health care bills ahead of the right of Congress to make laws and the right of 40 million people to the medical care Congress has given them.

If the most conservative Court in decades strikes down this law it will be for of political, not legal reasons.

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