I recently had this thought. Many claim that it is unconstitutional for the government to mandate everyone to buy health insurance, and impose a fine of K dollars for not complying.
However, the government, having the power to levy taxes, can raise everyone’s by K dollars and refund the amount to anyone who buys health insurance.
Why is policy 1 unconstitutional, while policy 2 is when they are effectively the same thing?
Policy 2 is still not constitutional. The US Constitution is supposed to fund war and trade facilitation based on the revenue of tariffs. Not give money to anyone from anyone else.
Sixteenth Amendment
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
Just because the power to levy taxes is expressed in the Constitution it doesn’t follow that “therfore the Constitution effectively dictates the federal government can do whatever it wants with respect to spending and regulation”…which is effectively what you’re arguing.
The majority of the argument against the Constitutionality of Obamacare is the fact that it does not fall within the expressly delegated powers of the federal government. (This is essentially the cornerstone of every argument of unconstitutionality…as, something is “unconsitutional” if it goes against what the Constitution says.)
The counter-argument that proponants of Obamacare (and essentially any form of centralized power) respond with is a simple reference to the words “promote the general Welfare”. Essentially the argument is "the Constitution says it is within the purpose and power of the federal government to “promote the general Welfare”…“general Welfare” essentially meaning whatever the person talking is advocating.
The part which is most relevant to your question is the so-called “Taxing and Spending Clause” which states:
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
So essentially, proponants of any sort of government control or influence or mandate or, virtually anything, basically point to that one line and contend that whatever they are trying to force people into paying for is part of the “general Welfare” and therefore is Constitutional. Like this: “[whatever I’m advocating] promotes the general welfare of society. Bam. Constitutional.”
But obviously, if all you have to do is fit what government power you’re trying to create into the bucket of “general welfare” and that makes it Constitutional, there’s obviously no point to having a Constituiton at all. Obviously this notion was recognized by the people who actually authored the Constitution. Of course, Madison (“The Father of the Constitution”) was quite vocal on it:
And have a look at what he said would happen if this actually were to happen:
If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.
-remarks on the House floor, debates on Cod Fishery bill, (February 1792)
Smart guy, no?
In essence, the whole point of the Constitution is to restrain federal power. Not grant the central government the authority to do whatever it wants. Again, you don’t need a Constitution for that. And the colonists certainly didn’t need a revolution for that…they already had that situation under the king.
The United States Constitution clearly states:
"All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.‘’
Then it says,
“The Congress shall have power To…[A];
To [b];
To [c];
[…]
To [s].”
So to summarize, it states “everything we list here can be done by Congress (i.e. House & Senate).” Then it lists what can be done. Nowhere does it state anything about forcing people to buy things, providing health care, providing insurance, providing education, or any of the other things the federal government currently does or that people want it to do. (Meaning nowhere does it say anyone but the Congress can do what is listed…as in, including the President.) And to go a step further, later in the Constitution it says specifically: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Therefore, if it’s not in the enumerated powers, Congress can’t do it. And if it is in the enumerated powers, no other federal governmental body can do it.
That’s a lengthy response, but it’s not particularly germane to this discussion (at least, anything beyond your first paragraph). What I’m saying is that one can consider Obamacare as it is, with the individual mandate, unconstitutional for reasons you just stated. But, it is perfectly constitutional, as most would agree, for the government to raise everyone’s taxes, and give them a refund if they decide to purchase health insurance.
That’s essentially the same thing as forcing everyone to buy health insurance, and imposing a fine on those who don’t comply.
Same policies, wording makes one constitutional and the other unconstitutional. I find this particularly troublesome.
Ultimately, everyone values his own situational interest higher than any documented code. It’s easy to know which agenda anyone sides with. Those that want it one way will refer to clues about the intent of the authors of said document. Those that want it the other way will focus entirely on the words. I’ve seen the same war of interpretation happen with innumerable other documents. Basically, none care about documents, but all want to pretend to care to appeal to tradition.
Example: If I’m insulted by everything, everyone that says anything to me is in violation of forum rules. So, the only real rule is whatever the mods feel like doing.
Welcome to the world of rhetoric and politics.
Sure, one country can liberate or retaliate against (even percieved) threats, but they cannot invade. tsk tsk tsk. The same act of war define differently.
Mea culpa, I was talking about Obamacare as a whole.
So what you’re asking is if raising federal taxes is constitutional, and tax exemptions/ tax credits are constitutional, is it not constitutional to raise taxes and then enact an exemption or credit for people who purchase something.
I suppose one could make the argument that that is effectively the same thing as mandating everyone to buy health insurance and imposing a fine on those who don’t comply, however just because something creates a similar (or has the potential to create the same) result, doesn’t mean it’s the same thing.
Yes I understand your uneasiness about the concept, but your question essentially boils down to: “my mom says I can’t eat cake. But if I go have an operation and install a cake into my stomach, it’s still going to be cake coming out of my behind, just as if I had eaten it. So why is the seond option not breaking my mom’s rule?”
As I said, essentially what makes something unconsitutional is the fact that it violates what the Constitution says. If the actions of the government are within the scope of the powers enumerated, (i.e. as long as it is expressly mentioned in the document), that by definition would mean it is “constitutional”.
Now your problem is: “well that just means that as long as they work the gymnastics correctly, they can force me to do whatever they want”.
The response to that is:
(a) When was the last time that wasn’t the case?
(b) That’s a great argument against the idea of a constitution
(c) In part because of (b), that’s a great argument against the idea of a government.
If still want a more “legalized” answer, you might have found it by using the search function:
Healthcare Individual Mandate Constitutional:
As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or - as in the case of the individual mandate - an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.
Therefore, the mandate is not a tax because the mandate pre-exists the government expropriation of funds from the individual. Ergo, it does not follow that “taxation is constitutional, so a mandate is constitutional.” The mandate is unconstitutional because it is not a tax, and nowhere in the Constitution does it say anything about the government being allowed to create such a mandate.
I do realize this doesn’t address your overall concern head on, as you’re whole thing is “if the result is the same, how can one means be constitutional, and another means not constitutional.” But (a) I addressed that above, and (b)…just think about that.
Coincidentally enough, published just a few days ago…
About penalty vs. tax - if you take the idea that private property itself is immoral/illegal, taxation could then be labeled as a penalty. Penalty vs. tax can easily be circumvented.
Isn’t everthing government do is like this?
What about public schools? Government tax everyone and build public schools. Compare that to government make it mandatory to send your kids to public school and pay for it and then fine people for not sending kids to public school.
Say everyone start of with 10 unit of money. Say public school cost 5 unit. Also assume everyone has the same number of kids (an assumption I would relax latter)
Option A ( I am getting dizzy my self). Tax everyone fund public school.
Parents Send Kid to Public School: 10 -2.5 public school tax - 2.5 other tax = 5. Their kid is in public school.
Parents send kid to study online for free: 10-2.5 public school tax -2.5 other tax = 5. Their kid is not in public school.
Notice that even though studying online is more cost efficient than public school, people choose to send to public schools anyway due to government intervention.
Option B fine people 5 for not sending kid to public school. Also because there is no tax, people start of
Parents Send Kid to Public School: 10 - 5 public school fee = 5. Their kid is in public school.
Parents send kid to study online for free: 10-5 public school tax = 5. Their kid is not in public school.
Other taxes are gone in option B because governments got 10 unit of revenue and only spend 5 for public school.
Replace public school with obamacare, and you got the exact same structure. We know that public schools do exist right and so far, your supreme courts doesn’t bitch about it’s constitutionality.
We presume everyone make the same amount of money and have the same number of kids. Also notice that public schools are beneficial mainly for the poor and not the rich. Let’s relax that a little bit.
Option B, which is equivalent with option A, is effectively forcing the poor to make kids. Obamacare effectively force people to be sick and force sick people to make kids. Is that constitutional? Looks like it is.
Public schools are run by states, not the federal government. If a state makes education compulsory and uses taxes to create government run schools it’s not a federal issues as states are allowed to do that. The federal government has no authority to do what you described.
I recently had this thought. Many claim that it is unconstitutional for the government to mandate everyone to buy health insurance, and impose a fine of K dollars for not complying.
However, the government, having the power to levy taxes, can raise everyone’s by K dollars and refund the amount to anyone who buys health insurance.
Why is policy 1 unconstitutional, while policy 2 is when they are effectively the same thing?
Seems that the only difference between your two scenarios is that in the first (mandate) they can secure further coercion and socialism in the future because of rising medical costs and the problems they will create in the economy. They can just blame it on capitalism and greedy employers.
With the tax however people will actually get upset more at the government. Obviously inflation is the solution to this problem… if only they weren’t restricted by the do-nothing congress…
I was thinking about this the other day when I was thinking about the obamacare defense. I was afraid that if it is deamed unconstitutional then obama can just issue an executive order and pay for it with counterfeit money. Why not?
Show me a legal argument that “private property itself is illegal”. (I think in this context whether it’s immoral or not is irrelevant).
John James,
Your legal interpretation of the limits of the general welfare clause as well as (I assume) the commerce clause will certainly be compelling to at least three justices (Thomas, Scalia and Alito.) We all know that Breyer, Ginsburg, Kagan and Sotomayor will most likely support the individual mandate. The real question is how Roberts and, in particular, Kennedy will rule. I am not well studied in Kennedy’s commerce/tax position but I don’t think he’s an originalist.
I must say I’m flattered that you would come back after a year and a half absence just to reply to my post
But yes, it’s been pretty well exhausted in the media that Kennedy (and maybe Roberts) would be the deciding votes. Kennedy has always been known as the “swing vote”.
What I’ve said here is nothing new, of course. I mean, I quoted Madison, so of course the understanding of the Constitution that I’ve presented here (which of course is the correct one) has been known since the document was ratified. Tom Woods has of course done plenty of documentation on this. (Of course the various books are in order as well).
As for how the case went, it doesn’t look good for the defense, as can be seen in the Obamacare thread.
Well let’s hope that Kennedy finds the originalist position compelling.
Yeah, if you check out that obamacare thread, you’ll see the legal analyst didn’t find the defense’s argument very compelling…leading him to think things don’t look so good for Pelosi and friends.
There’s not even a single originalist position. Essentially from the start, the language of the US Constitution has been interpreted in multiple ways. In this case, I think the crux of the issue hinges on the Supreme Court’s interpretation of the general-welfare provision of the Taxing and Spending Clause. Will they interpret it as granting Congress a separate, non-derived power to “provide for the general welfare”? Or will they interpret it as granting Congress the power to tax in order to “provide for the general welfare”?
Over time, the Supreme Court has interpreted the Taxing and Spending Clause increasingly broadly. This has especially been the case since 1936 (see above link). I, for one, wouldn’t be surprised if the Supreme Court takes things a step further this time and completely decouples the power to “provide for the general welfare” from the power to tax.
