Tuesday, March 9, 2010

The Wild Rumpus Over the Individual Mandate is About to Start

The Virginia legislature is about to pass a bill that would prohibit mandating citizens to have medical insurance or pay what they call a "fine" or "penalty" (see here). The long anticipated wild rumpus over the individual mandate is about to start!

[Dear non-U.S. readers - "wild rumpus" is an episode in "Where The Wild Things Are," Maurice Sendak's wonderful book for children and their parents.]

The Virginia legislature's attack on the individual mandate rests on two legal arguments that are psychologically understandable but muddled and wrong about key facts:

  1. State Senator Fred Quayle, one of the sponsors of the bill, argues that “in the entire history of this country there has ever been any act of Congress requiring a citizen to buy anything.’’ But as Yale Law Professor Jack Balkin points out in a New England Journal article on the legal status of the mandate, the mandate is actually a form of tax that individuals do not have to pay if they have health insurance. The General Welfare clause in the Constitution ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States") is unambiguous about the government's right to impose taxes.

  2. State Representative Bob Marshall makes a variant of Quayle's argument: “This is a penalty for doing nothing. Hey, I’m doing nothing, leave me alone." But if Marshall elects to be uninsured he's not doing nothing. If he is injured and goes to an emergency room, the Federal Emergency Medical Treatment and Labor Act (EMTALA) mandates emergency care that his fellow citizens will pay for it he doesn't. And if he develops a curable cancer, his friends will hold a bake sale and make donations to pay for the treatment he has elected not to insure against.

But opposition to the mandate also rests on two moral arguments. While I reject these arguments as not consistent with the guiding principles for a decent human society, they are views deeply held by many Americans, not simply muddled legal thinking:

  1. While I prefer to think of the provision of basic health care as a societal obligation rather than a right, many in our society see it as neither. This is the perspective behind Senator Quayle's faulty legal analysis - that health insurance is a consumer good, like cars and computers. It would be absurd to mandate purchase of cars or computers. But for those who see health, and therefore basic health care, as of distinctive importance, taxing ourselves to provide it becomes a moral requirement, not an abominable manifestation of "socialized medicine."

  2. The article about the legislature I cited above reports that "Clint Bolick, a litigation specialist with the conservative Goldwater Institute who wants to test the mandate in the US Supreme Court if it passes, said Obama’s plan to mandate insurance coverage is nothing more than an effort to require one group of people to subsidize insurance for another." In nosing around the web to see what I could find about income redistribution I came upon "Conservapedia," a site that I - a card carrying liberal - wasn't aware of. It set forth the argument against cross subsidization this way:

    Income redistribution can be either the act of an individual's voluntary charitable giving or government mandated compulsory transfer of assets and income from one group of citizens to another group.

    Most conservatives accept and advocate voluntary charitable giving as necessary to alleviate social problems, but believe the government should not interfere, but rather should encourage personal involvement and personal giving to the under-privileged, elderly, disabled, and other hardship cases. Also, many conservatives view some forms of government redistribution as an impingement on personal rights, leading to unjust expropriation of property, fostering irresponsible social conduct and acting as a disincentive for personal involvement to alleviate social problems. Also, mandatory giving may create jobs for bureaucrats and dependent constituencies as electoral bases. By contrast better off liberals like professors are more likely to vote for political parties that favor income redistribution. Income redistribution will increase the taxation they personally pay. They show altruism by the way they vote.
Even in our fractious society, there is near universal agreement that health care costs must be constrained. There is similar near universal agreement among economists that this cannot be done without bringing the full population into the insurance pool.

Nevertheless, Virginia will pass its anti-mandate law, the governor will sign it, and a number of other states will join the bandwagon. The issue will ultimately go to the Supreme Court. Despite the anti-administration tilt on the Roberts court I am persuaded by Balkin's analysis that the anti-mandate legislation is almost certain to be rejected.

Therefore, since health care costs must be constrained, whether through federal legislation this year or, if that fails, when the U.S. economy implodes further, the paradoxical result of the conservative anti-mandate fervor is that we will ultimately need an out-of-the-closet tax. Single payer - here we come!


eric said...

Jim--Is "Individual Mandate" a helpful term? The Democrats have been letting the Republicans define their ideas with misleading labels. We have to buy insurance for our cars, or face stiff penalties. We pay taxes for military, police, and firefighters to protect us; for schools to educate us; for healthcare for our elders; for income after our retirement. Is buying health insurance or paying a tax any different?--Eric

Anonymous said...

It is not muddled legal thinking to suggest that the government has no right to threaten to tax anyone who doesn't do what they want them to do.

Obviously, if the government could tax anyone for any reason in order to get them to do anything they wanted, there would be no limits on Federal Government power.

The taxes have to be uniform, and therefore you cannot tax different people differently based on things you want to force them to do.

Why is this so difficult to understand? Just remove everything else in the entire fucking document if you think that the tax power gives congress the right to impose taxes to get their citizens to do anything they want.

It is ridiculous. Obviously the tax powers only mean that they can tax to support the other powers that were granted to them.

You fucking idiot.

Jim Sabin said...

Hi Eric -

As always, it's good to hear from you!

I agree that the Republicans are sound bite masters. Calling the moderate health reform proposal a "massive government takeover" is a prime example. As I said in the post, and as Jack Balkin's NEJM article shows at greated length, the "individual mandate" is exactly what you say - a form of tax.

There may be a better phrase than "individual mandate," but I think the explosive reaction it elicits in opponents comes from rejection of universal coverage as an aim. If a person rejects the goal of universal insurance, levying a tax for being uninsured will seem like a grave injustice.

I'm not a politician, but I think that a tax-based insurance system would ultimately receive wider support than the indirect individual mandate scheme does. That's why I made the prediction I did in the last line of the post!



Jim Sabin said...

Dear Anonymous –

I ordinarily delete comments laced with profanity. I’m publishing yours because it typifies the problem with our political culture.

You actually raise important questions, but your abusive language will tempt readers to dismiss your comments as the ravings of a crank. Your language doesn’t do justice to the argument you could make.

The Constitution gives Congress power to levy taxes to promote the general welfare. The health reform bill meets that test. It insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally. Therefore, a tax, in the form of the individual mandate, is entirely within the powers granted to Congress by the Constitution.

That doesn’t prove that it’s a good bill – only that it is consistent democratic process. Congress can’t “impose taxes to get citizens to do anything they want,” but it can impose taxes to promote the general welfare.

You have worthwhile things to say. I’d encourage you to say them in a way that invites thoughtful discussion!