Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It Is Unconstitutional
Sen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional:
President Obama’s health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce.
Jack Balkin, also a lawyer, and one who knows how to read legislation, replies that the individual mandate does, too, tax and spend:
The House bill is a tax on adjusted gross income. You pay the tax if you don’t purchase health insurance. Put another way, if you don’t want to buy health insurance you can just pay the tax.
The Senate bill is a penalty tax. If you don’t want to purchase health insurance, you pay the tax. The penalty is assessed for as long as you don’t buy insurance. Such taxes are quite common– think, for example, about the penalties imposed for failing to pay your income tax on time, or a tax on polluters who fail to purchase and install anti-pollution equipment. The Senate bill can also be classified as an excise tax on an event– failure to pay premiums in a given month.
Congress’s powers to impose an income tax, a penalty tax, or an excise tax are unproblematic. The House and Senate versions of the individual mandate are clearly within Congress’s powers to tax and spend for the general welfare. Nor are they direct taxes that must be apportioned by state. Under the 16th Amendment taxes on income need not be apportioned no matter what the source of the income; excise and penalty taxes are not taxes on real estate and they are not capitation or “head” taxes, taxes that are levied on the population no matter what they do. Therefore they are not direct taxes within the meaning of the Constitution and existing precedents.
Either the House or the Senate version of the tax is clearly constitutional under existing law. It is not even a close question.
44 Responses to “Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It Is Unconstitutional”
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
Something comes to mind about the final refuge of the true scoundrel. In legislating it seems to involve looking sideways at the constitution and pretending it says what it doesn't.
But remember they have an ace in the hole, a Supreme Court that has not been afraid to make politically expeditious decisions, flying wildly in the face of long standing precedent. Just remember Bush v. Gore or Heller v. District of Columbia. .
So we're going to call it a tax after all. A new tax on millions of middle class Americans, a tax that Obama repeatedly and solemnly pledged would not happen. I can hardly wait to see the reaction to that one in the polling booth. And here's the best part — 100% Democratic Party votes made it happen. 100%
Googling “Obama says no new middle class taxes” returns over 4 million hits. And 758 videos, many of them of Obama promising no new taxes on the middle class. Nothing on those making less than $250,000/year. And now to make this pass Constitutional muster we're going to casually and confidently sell the individual mandate as a new tax. Democrats will be going before the USSC and insisting that they have raised taxes on the American people after promising so many times, even in the past few months, that they wouldn't. This is a great idea! I love it!
And when they go to court, here's a witness that Hatch can call to support the claim that it's not a tax. 'Constitutional Scholar' Barrack Obama, testifying before 'Justice' George Stefanopoulos:
“No. That's not true, George. The—for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase.
http://online.wsj.com/article/SB100014240529702…
It depends on what the meaning of “absolutely not” is then?
The only opinion that counts in the end is that of the USSC. And it looks like we are eventually going to get just that. Should be a lot of fun getting there.
Sen Hatch's position is indeed interesting. So I can then also conclude that the requirement to carry auto insurance in my home state is unconstitutional?
Kidding aside… universal health care reform is indeed one of the two ideological battles of our time and I am not surprised that both sides are pulling out all the the stops. (The other in my view being terrorism as a military or criminal assault on our country.) Although I am inclined (with some worries) to support the final reform bills, I am concerned that the left seems to frame the opposition as fighting the bad fight. These are monumental issues worthy of debate and it is not so far fetched an idea that provisions of the final bill may end up in decided in our courts instead of our legislatures. I believe liberals like myself best serve the cause by acknowledging debate and taking it head on.
But Balkin is one of those pointy head academics. He teaches at Yale Law! Us good 'Merikans don't need no book learning! We know that the Constitution says what Orrin and his boys Ken Blackwell (no law degree) and Ken Klukowski (wingnut welfare recipient and graduate of a non-top tier law school) say it says!
Also, what is USSC? Perhaps you mean SCOTUS?
BTW, Sen Hatch is no dummy. Sounds like a “when did you stop beating your wife” question to me! And some are already taking the bait arguing that the bill certainly does “tax and spend”. Last I heard, the electorate is not very happy with that idea…
A couple random thoughts.
1. This could prove interesting debate since the supporters of the bill have insisted that it is NOT a tax on the middle class. Do they now have to backtrack that argument in order to pass muster
2. As with many political issues (like Global Warming) I find the intolerance of any dissenting view sort of sad. I haven't yet dug into the specifics to decide if I think the legal argument is valid but I don't see why asking the question is so bad.
Isn't open debate a good thing ?
Yep, SCOTUS.
Sloppy I was, thanks.
regarding the auto insurance analogy, there are some major differences.
You do not have to have auto insurance to live in any state, only to drive. Driving is a privilege, not a right.
The auto insurance you are required to have is liability, to cover damage you do to others. You are not required to insure yourself or damage done to your vehicle — at least in most states if not all.
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And the country has paid dearly for that one…
Hey, Pat: dissenting views on global warming are not only tolerated, but encouraged, provided you have some kind of evidence other than a deep-seated political conviction that any problem that requires government intervention is an invention of a global socialist cabal. Cherry-picked data starting from the year of your choice doesn't count, unless you can show why that year is the best choice to represent the trend.
So if you want to have a crack at disproving anthropogenic climate change, go to http://podaac.jpl.nasa.gov/ or some other site where all the data is freely available, and have at it.
keelay, read the full article in the WSJ. It gives you a good rationale why states can impose mandatory auto insurance but the federal government could not.
I love the liberals here…do you think they could actually advance a counterargument on the rationales provided?….no, they simply resort to whining.
The fat lady has not yet sung on what you will get out of reconciliation, much less constitutional challenges…stay tuned.
Good point. It was a joke anyway… I have heard the analogy used seriously though, so point well taken.
Thanks. The insurance analogy was a joke (I did follow with “kidding aside”…). Again, I think Hatch has come up with a clever argument and a loser for the Dems either way.
The Hatch article raises legitimate questions, especially does the federal government have the right to require citizens to spend their own money on a commercial product? While I agree with Hatch I suspect SCOTUS will not. The trend over the past few decades has been to grant the federal government greater and greater power, and I doubt they will reverse course now.
The government requires people to pay for a commercial product currently, in the auto insurance. So what is the difference?
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[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
Unfortunately, the insurance model requires as many insureds in a pool to make it non-discriminatory. If we are going to get stuck with this particular HCR bill, than this means everybody in the pool. Tax or mandate, the wheels seem to be in motion and a little part of our freedoms will be added to the sausage that comes out.
The reality is that SCOTUS, despite the whining of the Left, has traditionally and even in recent rulings allowed the Commerce Clause to be twisted to such an extent as to cover activities that are only intrastate.
They also tend to be very deferential to the Federal Government in allowing the expansion of its powers, whether the Executive or the Legislative.
As much as I hate the health insurance reform and look for ANYTHING that can stop this cancer on the US taxpayer, looking to SCOTUS is the least likely resolution.
Plus, it will take a few years, at best, for any case to even make it to them, which only decreases the odds of them terminating a program that would already be in place for years by the time they would rule.
That is not a federal mandate, it is a state-by-state issue. That is the difference, and it means everything in this case.
Geeze, last I heard Orrin Hatch was getting ready to pursue a musical career. Maybe he needs to get out of DC and head over to Nashville? Ya gotta love how people throw around the USC… when they think it's convenient to their purposes that is.
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It is an interesting debate, and one that puts liberals who decried Bush for disrespecting the Constitution against conservatives who supported Bush's numerous end-runs around the same document.
Hatch objects on three grounds, while claiming others exist. The first is that health insurance is not an interstate commerce. The second is that it unfairly exempts Nebraska from additional Medicaid taxation. The third is that it empowers the federal government to act in the stead of state government to set up insurance cooperatives if the state fails to do so.
The third point is probably the strongest. The federal government cannot take over a state government. However, if the Court struck down this part of the law, it would not invalidate the entire thing. It could easily be fixed by allowing citizens of one state to purchase insurance in another state in the event that their state failed to provide an adequate coop.
The second is also a valid point. Taxes are meant to be uniform throughout the country. Again, striking down that part of the bill would not invalidate the entire thing.
The first point is a bit more difficult to deal with. It hinges on whether or not one thinks that health care substantially impacts interstate commerce or not. There is a second part of the commerce clause that gets less attention though, and that is the foreign commerce aspect. I think there is a substantial argument to be made that having segments of our population underserved with regards to health insurance negatively impacts our overall economy with respect to other economies.
But Democrats have shown for a long time now that they are incapable of determining the terms of the debate.
Hatch is wrong. I am required already by the federal government to carry flood insurance, and a “public option” is available. No constitutional challenges have been raised to that program.
Hatch is wrong. I am required already by the federal government to carry flood insurance
I am guessing the requirement is a condition of a mortgage? In that case you are free to turn down the mortgage and not get flood insurance. Since most lenders are federally regulated and insured, the government can legally attach conditions to the loans.
AR here. I won't be using this new account again, as I have been banned and will respect that, so this really is goodbye for good after 6 years.
Seems the Left is a bit too thin-skinned now. Oh well.
Many of you won't miss me at all, I am sure, but to those who will, I will miss you, too.
DG, by whatever mechanism, I am required to carry several kinds of insurance.
I'm not pleased with the health reform compromise, and fought for single payer, Medicare for all, or at least a public option. Well I lose and so does America.
But I'll bet mandatory insurance is not struck down as unconstitutional. I don't mind if it is, as then we'd have to revisit public option. I'm not sure what “the right” is trying to accomplish. They don't want the government to cover the uninsured, and don't want them to be forced to get coverage. I guess their solution is that the insured get to continue to pick up the cost of pricey ER health care for the uninsured. Good luck with that. By the time the requirement kicks in, I'm on single payer anyway. Have fun with your high premiums.
Seems the Left is a bit too thin-skinned now.”
They are a little, you have to pull your punches around here. An honest but too strident post labels you as a Cheney clone or worse a Limburger. I didn't agree with some of your stuff, but will still miss you. Be well, that's what's important.
They don't want the government to cover the uninsured, and don't want them to be forced to get coverage.”
I hope I don't get banned, but what gives you the authority to speak for the “right”. I am a rightie, and I would like everyone covered for HC and I believe in a large mandate/tax/fee to do it. I don't think I am the only one that feels: “T'ain't What'cha do, it's the way How'cha do it”. Building on swampland often leads to disaster. (I know DC was swamp; proves my point.)
Putting people in jail or fining for not buying health insurance was something Obama blasted Clinton on during the primaries, will be interesting to see hat he does now that the ball is in his court. Will he stick to his principles or sell them out and start throwing folks in the pokey for not complying with government mandates. Forcing folks to buy insurance in order to live free in this nation is a travesty of what America stands for. Now its time to see if President Obama will stand for this policy.
It'a a tax, no it's a mandate, no it's a fee, no it's a misinterpretation of a campaign utterance. No, better yet ,it's a charitable contribution. (And, keep Gitmo open for any crotch bombers that don't buy insurance.)
I hardly think there are any punches that need to be pulled so long as folks stay within the comments policy. In any case, I don't think it's a matter of being “thin-skinned” so much as it is a low tolerance for nonsense.
plus, these are STATE laws; the only thing the constitution says about them is that the states have the right to make their own laws. If the law is against the constitution OF THAT STATE, it can be challenged on that basis. As far as I know, nobody is saying the MA law requiring health insurance is unconstitutional, because it is a STATE law.
I don't disagree at all ccpmd, and I should have included that in my short list. Since I've already used the “insufficient coffee” excuse this week, I'll just go ahead on over to the penalty box, and thank you for pointing that out.
The frustrating problem is that the misconception that mandatory auto insurance somehow validates mandatory health insurance is widespread. There are several important differences. Yet no sooner is that explained than someone pops up and repeats the false meme.
Each state requires numerous “occupational” or service licenses and insurances, but they are specific.
A federal/national requirement for everyone is a different kettle of fish. I am in the insurance field and I would favor a national regulator as I have regulating my securities activities and my broker dealer's.
The states have a great revenue getter with their 50 separate departments and fees, but it is very antiquated. With a good HCR system (probably, not the current bills) a national regulator would work better.
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
Watch out dduck…
For preferring a national regulator for insurance (or any regulation at all, for that matter), you're bound to be labeled an arugula-loving socialist and lose any rightie street cred you may have.
Ok, just don't tell Father_Time, he is busy flying with eagles.
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]
[...] Orrin Hatch: Individual Mandate Does Not Tax or Spend; Therefore, It – The Moderate VoiceSen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional : President Obama’s health-care bill is now moving [...]