ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
I have heard only snippets of the Atlanta shoot-out over ObamaCare that pits the current acting Solicitor General Neal Katyal against former Solicitor General Paul Clement on the constitutionality of ObamaCare. In the Atlanta hearing, Katyal asked a politically balanced three-judge panel to uphold the statute, which had previously been struck down by Florida federal district court judge Roger Vinson, on the ground that the individual mandate regulated an economic decision of individuals not to take health care, which thus in his view fell within the power of the federal government to regulate under the Commerce Clause. Clement stuck with the line that an individual decision not to purchase health care could not be subject to federal power, lest it be impossible to find any limits to Congress’s ability to force individuals to act, either for their own benefit or for the benefit of others.
It is that last phrase which may yet bring the government to grief. Throughout the litigation, the government has insisted on two inconsistent propositions about the requirement that everyone sign up for ObamaCare. On the one hand, it maintains that those who refuse to sign up are freeloaders on a system who will claim their pound of flesh when they check in at the emergency room. But on the other hand, the government says that these individuals must be included in the system in order to prop up its shaky finances by paying more into the system than they will take out from it. So it is the government’s view that the nonparticipants receive a subsidy by staying out. Yet at the same time the government wants to force them in so that they will provide a subsidy to others. Try as one may, it is hard to make any sense of the proposition that people become free riders because they don’t want to get soaked by a government program from which they derive no net benefit.
Whether the government can win on both of these points remains to be seen. While we wait, it is worth noting that there is a second issue in the case that cannot be dismissed either. ObamaCare contains a large number of mandates that force the states to pick up an expensive portion of the Medicaid population at their own expense if they choose not to participate in the program. Recently, Mario Loyola and I had a short piece in the Wall Street Journal that argued that this damned-if-you-do, damned-if-you-don’t scenario constituted a form of federal coercion that necessarily encroached on the sovereignty of the states. There are other cases out there which have recognized that there are some limits on how far the federal government can go to commandeer state participation in its own plans. It makes perfectly good sense to say that the federal bullying should come to a halt here, at which point there is a second challenge to a statute whose implementation promises major dislocations in both private and public markets.
But we won’t know how it plays out until it gets to the Supreme Court, which is surely will. Wait ‘til next year.
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Jan '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
I'm going to play devil's advocate on this one. What makes this mandate any different than the mandates placed on nearly all workers (and the self-employed) who have FICA deducted from their checks (or pay the self-employed tax rate)? If the decision by the court is to strike down this mandate then can't a similar case be brought to the court concerning the mandate by the vast majority of workers who have to contribute to FICA?
Again, that's just asking a question and should not be construed as the way I really feel about this issue,
Apr '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
It makes you wonder if the founders knew what the government would wind up doing, if they may have reconsidered the commerce clause?
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
It would be a political blessing if the Supreme Court decision were delayed until after the first Tuesday in November, 2012.
Jan '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
The commerce clause, by itself, is fine ... and was interpreted benignly for well over half the country's history. It became a problem only when its words were (in my view) distorted. You can anticipate and prepare for honest interpretations, but dishonesty has infinite variations, and you can't prepare for all of them.
Jan '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
Please delete
Edited on Jun 9, 2011 at 7:44amJan '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
The difference between incentive and coercion is about respecting freedom. Consider the following. Suppose you have a choice between X, Y, and Z. Someone wants you to choose Z.
Usually, they attack XY by adding burdens that XY don't naturally have. You poison the well, so to speak.
If Obamacare was an attractive option on its own merits, there would be no need to coerce. You only coerce when your option is so bad that you have to destroy the other options just to have it considered.
The proof is in the pudding. The reason the federal government knows that it must coerce states to accept Obamacare is because they already know it's a bad deal for the states on its own. · Jun 9 at 7:42am
May '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
LowCountryJoe:
FDR took this point into account when social security was passed. It is actually two laws: 1 a tax (which congress can levy) and 2 a benefit (which congress can provide). Under the laws, neither is dependent on the other. Although SS was sold as an annuity it never really was.
Because Obama made his promise not to raise taxes on those couple earning less than $250K he was in a bind and would not call the mandate a tax. In court he tried to argue that the mandate was a tax but judge Vinson did not buy it.
May '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
Paul:
What I cannot understand is how the 'freeloader' argument can even be made. The only reason there are freeloaders is that federal law mandates that private institutions (hospitals) that receive either Medicate or loan assistance (Hill-Burton) must take care of those who cannot afford to pay. Thus the argument being made is that because congress mandates that hospitals provide free care it now must mandate that others pay for it. I would appreciate knowing how from a legal perspective this argument can be made.
May '11
Re: ObamaCare, Next Stop: Will the Government Be Able to Get this Train Back on Track?
Richard:
What I cannot understand is how the 'freeloader' argument can even be made. The only reason there are freeloaders is that federal law mandates that private institutions (hospitals) that receive either Medicate or loan assistance (Hill-Burton) must take care of those who cannot afford to pay. Thus the argument being made is that because congress mandates that hospitals provide free care it now must mandate that others pay for it. I would appreciate knowing how from a legal perspective this argument can be made.