Is Romneycare Constitutional?

 

Some time ago, I wrote a post entitled What is Wrong with the Individual Mandate? In it, I tried to answer a rhetorical question posed by a Romney partisan who goes under the moniker ParisParamus, who had written:

Again, why is a mandate like Romneycare less conservative than raising everyone’s state income taxes to pay for the free riders? Or, why isn’t Romneycare fundamentally different than having raised everyone’s state income taxes and then offering a credit if you get private health insurance for not being less of a potential burden on the state? WHY?

 In response, on that occasion, I wrote the following — which I believe deserves to be read and read again:

There is a simple answer to the question posed by ParisParamus. Government exists first and foremost for the sake of our protection. Without it, our lives and our property would not effectively be our own. Government exists also to promote our well-being. For its support, however, taxation is necessary, and we have tacitly agreed that, to be legitimate, these taxes must be passed by our elected representatives. By our own consent, we give up a certain proportion of our earnings for these purposes.

The money left in our possession, however, is our own — to do with as we please. It is in this that our liberty largely lies. Romneycare and Obamacare, with the individual mandate, changes radically our relationship vis-a-vis the government. The former presupposes that state governments have the right to tell us how we are to spend our own money, and the latter presupposes that the federal government has that right as well. Both measures are tyrannical. They blur the distinction between public and private and extend the authority of the public over the disposition of that which is primordially private. Once this principle is accepted as legitimate, there is no limit to the authority of the government over us, and mandates of this sort will multiply — as do-gooders interested in improving our lives by directing them encroach further and further into the one sphere in which we have been left free hitherto.

Managerial progressives see only the end — preventing free-riders from riding for free. And they ignore the collateral damage done by way of the means selected. Mitt Romney and Newt Gingrich have no understanding of first principles. For both of these social engineers, citizens are subjects to be worked-over by the government for their own good. Both men are inclined to treat us as children subject to the authority of a paternalistic state under the direction of a benevolent and omniscient managerial class.

There is, however, this difference between Romney and Gingrich. The latter may or may not fully grasp why the Tea Party rose up against the individual mandate, but he recognizes that they did so, and he knows what is good for him — so he has now backed away from the fierce advocacy of this despotic measure that once characterized his posture. The former is more stubborn. Politically, he is tone deaf. He seems constitutionally incapable of grasping the argument, he insists that the individual mandate is consistent with conservative principle, and he will not back off.

Raising taxes to reward free riders is, of course, objectionable. We should oppose it on principle. But it does not in and of itself narrow in any significant fashion the sphere of our liberty. It is a question of the proper use of the public purse. The individual mandate sets a new precedent. It extends government control to the private purse.

JohnAdams3.jpgIn the comments, I made it clear that I thought this argument – which applies with equal force to Romneycare and its offspring Obamacare – a much more serious objection to the latter than the argument that the latter is inconsistent with the commerce clause of the Constitution (which, I believe, it is). My point was that, in judging these matters, we need to resort to first principles.

In the course of the exchanges that then took place, I suggested that Romneycare was unconstitutional under the Massachusetts Constitution. On this matter, James of England, who worked in Romney’s campaign in 2008 and supports him no less fiercely today, challenged me to “quote any informed source for, or otherwise support the claim that there is uncertainty regarding the constitutionality of MassCare under the state constitution.” In the circumstances, I was unable to do so – largely because I did not have the time to do the necessary research, and, in response, James of England argued that the individual mandate fell neatly within the “police power” left to the states as that was understood at the time of the promulgation of the Constitution of Massachusetts in 1780, and he then insisted that I “stop raising the lack of clarity as though you have some support for the claim.” In response, I wrote, “You can ask, but I will not comply — because I know a thing or two about eighteenth-century American political thought, and I doubt very much that the Constitution drafted by John Adams would sanction the individual mandate.” This earned me the following rebuke:

Could I ask you to raise the topic the next time you talk to someone you trust on the subject? To cast cutting aspersions under the guise of authority while intentionally remaining ignorant of their truth seems against your general manner.

The police power is not defined narrowly; this is almost the definition of “police power”. Rather, it grants power generally and then prohibits things thought of, much of which were not thought of by Adams, but by much later amenders. Things unconsidered are therefore generally permitted (although future generations can ban them).

And to this, I in turned responded, “Sorry, James, this will not do. Technically, you may be correct. But I know enough about the thinking of people in eighteenth-century America (on which I penned a sizable tome) to be confident that it would have been simply unthinkable to propose requiring all of the citizens of Massachusetts or any other state to spend a chunk of their own money at the direction of the government.”

I mention all of this because James brought this issue up again last night, writing in a comment on Ben Domenech’s post:

Prof. Rahe does not consider federalism to be a “substantive”, or, elsewhere, “serious” difference between Obamacare and Romneycare.

More importantly, Rahe attacks the constitutionality of Romneycare, while admitting that he has no basis for this other than a sense that John Adams would have opposed mandates (despite Adams using a mandate in the Massachusetts constitution (Article III)), and occasionally uses “enumerated powers” to describe state government powers.

Leave aside the fact that, in these paragraphs, he misstates my position (as is, on occasion, his wont). The substantive claim he makes is more important and deserves examination, and I want to address it in such a way as to show that the Constitution of Massachusetts framed by John Adams and ratified by the people of that state in their town meetings in 1780 supports my position, not that of James, and that in his desperate defense of Mitt Romney James is claiming an expertise that he does not possess.

Here is the first paragraph of the preamble to that Constitution:

The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.

It needs to be read in conjunction with the first article of the Massachusetts Declaration of Rights (which follows immediately upon the preamble):

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

There are two things worth noticing – the emphasis on “natural rights and the blessings of life” in the first paragraph of the preamble and the list of “certain natural, essential, and unalienable rights” in the first article of the Declaration of Rights – among which can be found the right “of acquiring, possessing, and protecting property.”

I would submit that these two passages dovetail neatly with the argument I made about the ends of government in my earlier post, quoted at length above; and I think that you can easily see that Romneycare – which presupposes that the government of Massachusetts can dictate to its citizens how they are to spend their own money – is in breach of the Massachusetts Declaration of Rights. How, I would ask, can the property left to us after we have paid our taxes be in any respect our own if the state has the right to tell us how to spend it? And if the state can do this in one instance, what is there to prevent it from doing so in other instances?

James thinks that he has a ready response. He points to the third article of the Massachusetts Declaration of Rights, which reads as follows:

As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.

That a mandate is involved is clear. But it is not an individual mandate, as James implies. It is a mandate directed to “towns, parishes, precincts, and other bodies politic or religious societies,” which is to say, it is comparable to the obligations that states impose on local governments today, and it specifies one way in which those local governments in Massachusetts are to spend the revenues they raise by taxation.

I would submit that the distinction I drew and defended in my earlier post is a matter of the greatest importance. Our liberty depends on forms and formalities. The distinction between public revenues derivative from the taxes we pay with an eye to furnishing ourselves “with the power of enjoying, in safety and tranquillity, [our] natural rights and the blessings of life,” on the one hand, and the property we have a natural right to acquire, possess, and protect, on the other, is a sacred one.

Progressives reject forms and formalities. To achieve their ends, they are prepared to run roughshod over them – and over us. John Adams and the people of Massachusetts in 1780 understood what Mitt Romney, ParisParamus, and James of England have forgotten. If we are to win the battle in which we are now engaged, we must have recourse to the first principles that the Progressives so readily discard, and we must find a standard-bearer capable of eloquently making the argument. Only then can there be a new birth of freedom. Otherwise, our destiny will be to surrender to liberal democracy’s inexorable soft despotic drift.

It is a shame that there is no one in his entourage ready and able to explain to Mitt Romney the profound damage that he did when he ushered Romneycare into existence in Massachusetts. There is nothing more impressive than when a proud man stands up to confess that, in the past, he made a terrible mistake.

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  1. Profile Photo Contributor
    @PaulARahe

    I have written to my correspondent to convey the fact that there is a clamor in favor his joining us, and I have suggested that he adopt as his moniker “The Scarlet Pimpernel.”

    • #61
  2. Profile Photo Member
    @ScottR
    Stuart Creque

     

     

     

     

     

    How is health insurance “protection of the commonwealth”? · 2 minutes ago

    They included condoms in the mandate.

    • #62
  3. Profile Photo Moderator
    @JamesOfEngland
    Stuart Creque

    James Of England: What article actually governs property rights, then, in the Massachusetts constitution? Step forward, Article X.

    And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

    So an unfunded individual mandate is an unconstitutional taking under Article X.  Got it. · 0 minutes ago

    Aha! Now we get to a legal issue, after spending a long time in slightly Ron Paulish riffs on what the constitution would mean if we really wanted it to.

    Do you mean that this is a regulatory taking, or do you have some other theory of expropriation that you wish to apply? If the former, how familiar with the concept are you? I mean, obviously, under current jurisprudence, which is more protective than previous jurisprudence, Romneycare passes this test, because we’re now talking about actual legal controversies, Massachusetts has plenty of lawyers who have pursued this stuff, and opinions have been issued.  Nonetheless, there’s some actual meat here.

    Lastly, do you mean that the fine is a taking, or that people buying insurance is a taking?

    • #63
  4. Profile Photo Moderator
    @JamesOfEngland
    Stuart Creque

    James Of England

    Stuart Creque

    James Of England: What does the mandate do? It sets out conditions under which a man will be deprived of his property, with the consent of the representative body of the people. It does this in order to ensure that each person, so able and not disbarred by issues of conscience, contributes his share to society’s protection of his enjoyment of life.

    Is there any serious claim that the relevant representative body of the people did not give its consent?

    The following describes an obligation for military service:

    How is health insurance “protection of the commonwealth”? ·

    Military service is only one way in which citizens support the commonwealth. Massachusetts provides a range of benefits to its citizens that extends far beyond protection from foreign invasion. Where do you get the impression that this clause is talking solely or even chiefly about military service? Certainly not from the case law.

    • #64
  5. Profile Photo Inactive
    @MJMack

    I believe I’m watching a legal autodidact bring a knife to a gun fight.

    • #65
  6. Profile Photo Contributor
    @Midge
    ParisParamus: Taxes are noxious.  Mandates are noxious.  Neither is better.  Neither is worse.  Deal with it.

    ParisParamus:Mandates mean that our property is not ours. Think about it.

    Taking my money (taxes) isn’t a taking of property?  You distinguish between money and property?

    Obviously, money is property. But aren’t taxes are the one thing the government is permitted to take without compensation?

    (For, as Prof Rahe pointed out, if the government were not allowed to take property in the form of taxes, how could it provide the services that allow property rights to be enforced?)

    Yes, I think mandates are somehow more noxious than taxes. If you only look at the accounting aspect of it, you’re right that there’s no difference: taking less of my money when I cooperate is identical to taking more of my money when I don’t cooperate.

    But life is more than accounting, and I don’t think it’s just ignorance or stupidity that makes a lot of us instinctively find mandates even more menacing than higher taxes. I just wish I could articulate the difference between the two better. I don’t think it’s merely a legal nicety.

    • #66
  7. Profile Photo Member
    @JimmyCarter

    The word “mandate” should make every Freedom Loving American shudder…..

    Professor Rahe, I love Ya… not that I’m gay or anything like  that…..

    • #67
  8. Profile Photo Contributor
    @Midge

    OK, I’ll try to articulate why I find mandates with fees for non-compliance more menacing than tax breaks for compliance:

    First, despite the gimmick of “tax credits”, there’s really only so much a government will be willing to cut your taxes in exchange for complying with this or that “incentive”. Moreover, even if you miss a deduction you could have taken by complying with this or that program, as long as you pay your taxes — even if you’re paying more than you might have owed had you been cleverer at gaming the system — you’re in the clear.

    But with mandates and fees, there is no upper limit to the hoops you must jump through to remain legal. If you forgot to comply with something or forgot to pay the non-compliance fee, however innocently, you are now a criminal.

    I don’t know about everyone else, but it’s enough for me to keep track of the bills for the stuff I choose to buy. To have to keep track of a bunch of bills I incurred because I didn’t choose to buy a potentially endless list of products would drive me stark raving.

    • #68
  9. Profile Photo Inactive
    @EricRasmusen
      I googled a 2004 paper on John Adams and the 1780 Constitution. I haven’t read it, but it might be of interest to readers here and would no doubt have   references:John Witte http://papers.ssrn.com/sol3/papers.cfm?abstract_id=753566One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts ConstitutionTHE FOUNDERS ON GOD AND GOVERNMENT, Daniel L. Dreisbach, Mark D. Hall, and Jeffry R. Morrison, eds., pp. 23-52, Lanham,  2004  Abstract:      … , Adams’ constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams’ political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. … The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. …
    • #69
  10. Profile Photo Moderator
    @JamesOfEngland
    Douglas Wingate

    Paul A. Rahe

    Progressives reject forms and formalities. To achieve their ends, they are prepared to run roughshod over them – and over us. …It is a shame that there is no one in his entourage ready and able to explain to Mitt Romney the profound damage that he did when he ushered Romneycare into existence in Massachusetts.

    Ironically, the primary progressive decision to have come from the Massachusetts constitution in recent years, Goodridge v. Department of Health used precisely the clause that prof. Rahe does, with precisely the number of supporting precedents, although they at least acknowledged that the decision was a departure.

    Finding support for one’s policy preferences in the constitution where no court has previously offered a glimmer of hope is something we conservatives should not engage in without quite a lot of prior research; contrarian views may be correct, but disagreeing with the overwhelming consensus of conservative jurists, and every court to look at the issue, is something that probably requires more than a hunch.

    • #70
  11. Profile Photo Moderator
    @JamesOfEngland
    Stuart Creque

    James Of England

    OK. Do you mean that it’s a Lingle v. Chevron U.S.A.per se taking, or a Penn Central Transp. Co. v. NYC taking?

    How about aLucas v. South Carolina Coastal Commissiontaking?

    The majority argued as follows: (1) Deprivation of all economically beneficial use is, from the perspective of a property owner, deprivation of the property itself. (2) When all economically beneficial use is restricted, it is difficult to assume that the legislature is simply “adjusting” economical benefits and burdens. (3) Regulations that restrict all economically beneficial use may often be a guise of pressing that land into public service.

    Requiring a citizen to spend a sum on a product or service specified by the dictates of the State entirely deprives the citizen of the beneficial use of that property (money). · 

    Lucas is one of two kinds of regulatory taking described in Lingle. For it to apply to one’s financial holdings, substantially all of the money must be taken. Romneycare does not take substantially all of anyone’s money. If you can’t afford health insurance, you don’t need to buy it and you don’t pay a fine.

    • #71
  12. Profile Photo Contributor
    @Midge

    Another difference between taxes with tax breaks and fees for non-compliance:

    Taxes are typically expressed in terms of a percentages of what you already have (a percentage of income, of your home value, of what you voluntarily paid for various goods and services). Sometimes it happens that people owe more in taxes for a year than they can possibly pay, but in my understanding, that’s still pretty rare.

    With non-compliance fees, on the other hand, what’s to prevent the situation where you owe more in non-compliance fees than you could possibly pay from becoming a regular occurrence? The cheap answer is, “just comply with everything, and you’ll have nothing to worry about”.

    But the very act of complying takes time, knowledge, and resources that not everyone has. Not to mention perhaps even violence to your conscience, depending on what it is you must comply with. As the number of mandates you must comply with multiplies, complying with enough to stay solvent becomes ever more difficult.

    Where does it end?

    • #72
  13. Profile Photo Moderator
    @JamesOfEngland
    Midget Faded Rattlesnake:

    But with mandates and fees, there is no upper limit to the hoops you must jump through to remain legal. If you forgot to comply with something or forgot to pay the non-compliance fee, however innocently, you are now a criminal.

    I don’t know about everyone else, but it’s enough for me to keep track of the bills for the stuff Ichooseto buy. To have to keep track of a bunch of bills I incurred because Ididn’tchoose to buy a potentially endless list of products would drive me stark raving. ·

    In terms of Romneycare, you either buy insurance or you pay a fine the same way you pay taxes. It’s not going to make you a criminal, except in the sense that other avoidable income taxes (which, for practical purposes, is what the Romneycare fine is) do. If you are health insurance free and normally you manage to avoid engaging in fraud or refusing to pay what the IRS says, you’ll not have to change your behavior at all. If you have health insurance, even less change is involved.  Seventy page Romneycare is not thousand page Obamacare.

    • #73
  14. Profile Photo Inactive
    @MJMack

    Stuart, what does a law degree diploma from Google University look like?

    • #74
  15. Profile Photo Member
    @StuartCreque
    James Of England

    Stuart Creque

    The following describes an obligation for military service:

    How is health insurance “protection of the commonwealth”? ·

    Military service is only one way in which citizens support the commonwealth. Massachusetts provides a range of benefits to its citizens that extends far beyond protection from foreign invasion. Where do you get the impression that this clause is talking solely or even chiefly about military service? Certainly not from the case law.

    The clause doesn’t say “support the Commonwealth.”  It says “contribute [each citizen’s] share to the expense of this protection.”  Which protection?  “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. ”  And it specifies that to exact the contribution, the citizen may be required “to give his personal service, or an equivalent, when necessary.”

    So I suppose this could be used to draft Massachusetts citizens into service as insurance underwriters and adjusters in a Commonwealth-owned insurance corporation, if that was deemed essential to the Commonwealth’s protection of its citizens.

    How does it remotely empower the Commonwealth to order a citizen to purchase a good or service?

    • #75
  16. Profile Photo Thatcher
    @Instugator
    Scott Reusser:  For instance, Persons A and B are identical in every way. Person A pays cash for a house, while Person B gets a mortgage and hence pays significantly less in taxes. Haven’t both been “instructed how to spend their own money”, and hasn’t Person A been punished because he didn’t comply? 

    I know you got at least 5 likes and all, but your math doesn’t work out.

    Persons A and B are alike in every way. When the one pays cash for his house the one thing he isn’t paying is mortgage interest. So let’s assume   a $130K house and somewhere around 7% (gee it sounds just like my house.)

    In these circumstances, Person A pays more in taxes, but Person B pays far more in mortgage interest, about $10K/year at the start. Of that $10K he gets to claim a $10K deduction meaning he is returned about $1.7K from his taxes. He still paid about $8.3K per year more than person A.

    Person A still gets the standard deduction ($11.6K in 2011) in lieu of the mortgage interest deduction – at that level taxes are a wash.

    • #76
  17. Profile Photo Member
    @StuartCreque
    James Of England

    Stuart Creque

    So an unfunded individual mandate is an unconstitutional taking under Article X.  Got it. · 0 minutes ago

    Aha! Now we get to a legal issue, after spending a long time in slightly Ron Paulish riffs on what the constitution would mean if we really wanted it to.

    Do you mean that this is a regulatory taking, or do you have some other theory of expropriation that you wish to apply? If the former, how familiar with the concept are you? I mean, obviously, under current jurisprudence, which is more protective than previous jurisprudence, Romneycare passes this test, because we’re now talking about actual legal controversies, Massachusetts has plenty of lawyers who have pursued this stuff, and opinions have been issued.  Nonetheless, there’s some actual meat here.

    Lastly, do you mean that the fine is a taking, or that people buying insurance is a taking?

    When the government requires me to spend my money on a government-selected product or service (not on taxes paid to the government for government services), it’s made it impossible for me to use my property in the way I choose.  That is a regulatory taking.

    • #77
  18. Profile Photo Thatcher
    @Instugator
    James Of England

    In terms of Romneycare, you either buy insurance or you pay a fine the same way you pay taxes. It’s not going to make you a criminal, except in the sense that other avoidable income taxes (which, for practical purposes, is what the Romneycare fine is) do. If you are health insurance free and normally you manage to avoid engaging in fraud or refusing to pay what the IRS says, you’ll not have to change your behavior at all. If you have health insurance, even less change is involved.  Seventy page Romneycare is not thousand page Obamacare. · 21 minutes ago

    Cool, kind of like a Poll Tax, huh? Except in this case rather than paying it to vote, you just gotta pay it because you breathe.

    Could we call it an “Oxygen tax”?

    • #78
  19. Profile Photo Thatcher
    @Instugator

    I am still not getting the ‘free rider problem’ that Romneycare solves.

    A person goes into a hospital, receives care, doesn’t pay, the hospitals can attempt to collect via the court if they choose –  and the solution is to make everyone else by a product from a third party or else pay a fine? Huh?

    Can you apply this logic to housing too? People rent a house, stop paying, by the time they are evicted they owe the landlord 4 figures or more, the landlord can attempt to collect via the courts – and the solution is to make everyone by an insurance policy from a third party in the event of homlessness?

    I am not seeing what the state interest is here.

    Funny, the ‘Taking’ issue. When the Supreme Court took Suzette Kelo’s house, they didn’t take all of her wealth. So James, are you really arguing that as long as they leave a penny (being the lowest denomination of currency one can actually hold) the regulation can take everything else?

    So when are you going to bailout the landlords?

    • #79
  20. Profile Photo Moderator
    @JamesOfEngland
    Stuart Creque

    James Of England

    Aha! Now we get to a legal issue, after spending a long time in slightly Ron Paulish riffs on what the constitution would mean if we really wanted it to.

    Do you mean that….

    Lastly, do you mean that the fine is a taking, or that people buying insurance is a taking?

    When the government requires me to spend my money on a government-selected product or service (not on taxes paid to the government for government services), it’s made it impossible for me to use my property in the way I choose.  That is a regulatory taking. · 0 minutes ago

    OK. Do you mean that it’s a Lingle v. Chevron U.S.A. per se taking, or a Penn Central Transp. Co. v. New York City taking? Or do you have an alternative theory?  200 words is not enough to debate all possible meanings, although I’ll cope with your refusal to indicate whether it’s the fine or the insurance that’s the problem.

    • #80
  21. Profile Photo Moderator
    @JamesOfEngland
    Instugator

    Because there are interest costs with a mortgage. There is not necessarily interest income with the 130K – look at what your bank pays a savings/checking account if you don’t believe me.

    Romneycare isn’t an income tax. It is a fee/tax assessed above a minimum level of income for the privilege of being alive.

    So, please explain this free rider problem Romney care is supposed to solve?

    Are you really telling us that it is a Hospital bailout, Insurance company bonus or a Taxachusetts – oops – Massachusetts government bailout? · 

    If you have $130k savings for the period of a mortgage, and you put it in a checking account, you deserve the pitiful return you will receive. Ignorance is no excuse as you will be repeatedly informed of the foolishness of that decision in clear language.

    It is a tax/ fee that, starting at a particular income, then scales upwards as income increases until it reaches its cap (like a payroll tax). The increases are lumpier than a pure payroll tax, and not perfectly correlated with income, but are closer to that than a flat fee.

    EMTALA and other more complex issues.

    Not getting diverted onto this topic.

    • #81
  22. Profile Photo Moderator
    @JamesOfEngland
    Instugator

    James Of England

    In terms of Romneycare, you either buy insurance or you pay a fine the same way you pay taxes. It’s not going to make you a criminal, except in the sense that other avoidable income taxes (which, for practical purposes, is what the Romneycare fine is) do. If you are health insurance free and normally you manage to avoid engaging in fraud or refusing to pay what the IRS says, you’ll not have to change your behavior at all. If you have health insurance, even less change is involved.  Seventy page Romneycare is not thousand page Obamacare. · 21 minutes ago

    Cool, kind of like a Poll Tax, huh? Except in this case rather than paying it to vote, you just gotta pay it because you breathe.

    Could we call it an “Oxygen tax”? · 7 minutes ago

    It is a poll/ oxygen tax in the same sense that income taxes are. If you make enough income, you pay some of it to the government, with exceptions to payment requirements that cover most of the population.

    • #82
  23. Profile Photo Moderator
    @JamesOfEngland
    Instugator

    I know you got at least 5 likes and all, but your math doesn’t work out.

    Persons A and B are alike in every way. When the one pays cash for his house the one thing he isn’t paying is mortgage interest. So let’s assume   a $130K house and somewhere around 7% (gee it sounds just like my house.)

    In these circumstances, Person A pays more in taxes, but Person B pays far more in mortgage interest, about $10K/year at the start. Of that $10K he gets to claim a $10K deduction meaning he is returned about $1.7K from his taxes. He still paid about $8.3K per year more than person A.

    Person A still gets the standard deduction ($11.6K in 2011) in lieu of the mortgage interest deduction – at that level taxes are a wash. · 14 minutes ago

    It’s worth noting that the $130k not spent on the house by the borrower will probably get a non-zero return, and that different tax circumstances result in different outcomes; it’s not difficult to construct scenarios in which Scott’s hypo plays out as Scott described.

    • #83
  24. Profile Photo Inactive
    @AlPipkin

    Please forgive me for my lack of legal scholarship,  but I have an even more basic question as to the constitutionality of Obamacare and Romneycare, assuming Obamacare is unconstitutional, which I believe it is. If so, how then could Romneycare be constitutional under the US Constitution?

    The second amendment says we US citizens have the right to keep and bear arms. The City of Chicago decides it wants to ban gun ownership within its city limits. The Supreme court finds that, as Chicago is still a part of the United States and subject to it Constitution, rules Chicago’s gun ban to be unconstitutional. Further, the Tenth Amendment doesn’t give cover to a state to pass an unconstitutional law.

    So what is the difference which government entity mandates I purchase a product from a private entity? If a government mandate is unconstitutional, it’s unconstitutional even if my city is the entity. Correct?

    • #84
  25. Profile Photo Member
    @

    Yet Another Mandate, Or Not…

    This is the real-world outcome of this discussion on every level.

    • #85
  26. Profile Photo Moderator
    @JamesOfEngland
    Instugator: I am still not getting the ‘free rider problem’ that Romneycare solves.

    A person goes into a hospital, receives care, doesn’t pay, the hospitals can attempt to collect via the court if they choose –  and the solution is to make everyone else by a product from a third party or else pay a fine? Huh?…..

    Funny, the ‘Taking’ issue. When the Supreme Court took Suzette Kelo’s house, they didn’t take all of her wealth. So James, are you really arguing that as long as they leave a penny (being the lowest denomination of currency one can actually hold) the regulation can take everything else?

    So when are you going to bailout the landlords? ·

    I’m not responding to policy evaluations of Romneycare; I’m grateful for Prof. Rahe creating this thread and I’d like to keep it focused on constitutional issues. I wouldn’t advocate states passing similar laws, possibly excepting Vermont.

    Kelo wasn’t a regulatory taking. It was a plain ol’ vanilla taking, the sort of thing the Fifth Amendment was written to regulate/ prevent the Feds doing. The government has a much easier time taking your money than your house.

    • #86
  27. Profile Photo Thatcher
    @Instugator
    James Of England

    It’s worth noting that the $130k not spent on the house by the borrower will probably get a non-zero return, and that different tax circumstances result in different outcomes; it’s not difficult to construct scenarios in which Scott’s hypo plays out as Scott described. · 1 minute ago

    Ceteris paribus, James – they are alike in every way, except one has a mortgage interest deduction and the other doesn’t. We were not counting a capital gain some years later, just the results in a generic year.

    James Of EnglandIt is a poll/ oxygen tax in the same sense that income taxes are. If you make enough income, you pay some of it to the government, with exceptions to payment requirements that cover most of the population. · 7 minutes ago

    Except that Poll taxes are unconstitutional – Gee, if paying a tax simply to vote is unconstitutional why isn’t a tax simply for existing unconstitutional?

    I would think that one’s existence is much more valuable to one than one’s franchise.

    So James, was Prof Rahe correct by saying that  Romneycare is simply a solution to a “free rider” problem?

    • #87
  28. Profile Photo Contributor
    @DavidLimbaugh
    Al Pipkin: The second amendment says we US citizens have the right to keep and bear arms. The City of Chicago decides it wants to ban gun ownership within its city limits. The Supreme court finds that, as Chicago is still a part of the United States and subject to it Constitution, rules Chicago’s gun ban to be unconstitutional. Further, the Tenth Amendment doesn’t give cover to a state to pass an unconstitutional law.

    So what is the difference which government entity mandates I purchase a product from a private entity? If a government mandate is unconstitutional, it’s unconstitutional even if my city is the entity. Correct? · 6 minutes ago

    The Second Amendment, along with many other of the rights in the Bill of Rights, have been incorporated by the Court into the Due Process Clause of the 14th Amendment and thus made applicable to the states. In fact the 2nd Amendment was apparently incorporated in a case involving Chicago — McDonald v. Chicago (2010). The mandate is being challenged under the Commerce Clause — which is an enumerated federal power — and so has nothing to do with the states. I’m not an expert, but thats my take

    • #88
  29. Profile Photo Moderator
    @JamesOfEngland
    Stuart Creque

    James Of England

    Military service is only one way in which citizens support the commonwealth. Massachusetts provides a range of benefits to its citizens that extends far beyond protection from foreign invasion. Where do you get the impression that this clause is talking solely or even chiefly about military service? Certainly not from the case law.

    The clause doesn’t say “support the Commonwealth.”  It says “contribute [each citizen’s] share to the expense of this protection.”  Which protection?  “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. ”  And it specifies that to exact the contribution, the citizen may be required “to give his personal service, or an equivalent, when necessary.”

    In terms of personal service, jury duty would be the classic example, but the article finds more use through the passages continuing from those you quote. It outlines the restrictions on the use of power granted by, in Romneycare’s case, mostly by Article IV. The Commonwealth provides for protection of life, liberty, and property through the police, courts, healthcare, homeless shelters, and many other measures.

    • #89
  30. Profile Photo Moderator
    @JamesOfEngland

    [edit: David Limbaugh put it better than I did. ]

    • #90
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