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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.
In 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.
Published in General
But what you haven’t written yet is an argument why my views are wrong. You can say they aren’t supported by my credentials, but you haven’t given a counter argument.
Apparently you are more interested in pre-empting discussion than engaging in one.
I’m interested in you not citing case law that doesn’t apply because you are unaware of the formal legal standards involved in said cases, as if you’re some type of legal scholar that has the training and experience to hold forth as some expert in Massachusetts and federal case law, when you clearly aren’t. It’s a peeve of mine that so many conservatives these days presume themselves to be experits on the constitution and the founding, so that they march through the streets in tri-corner hats, holding flags that say “don’t tread on me!”, looking perfectly ridiculous and making the conservative movement look like a bunch of weirdos who still live in their parents basement and watch too many History Channel battle reenactments.
I’m sorry: was there an actual argument in there?
I know that you are better educated than I, smarter than I, and no doubt better looking than I. So it puzzles me that rather than pointing out substantively where my views are mistaken, you simply assert that I have no right to discuss my views, because I somehow embarrass you. That’s funny right there.
Lots of us are autodidacts in a subject outside our careers. It’s an American tradition. Usually, autodidacts don’t presume to have expertise equal to those credentialed in the field, but in an open society, why shouldn’t knowledge of all sorts be open to general inquiry?
Autodidacts learn by reading a lot, arguing with people, and later reflecting on their arguments. What you “note” as “interesting” could just be part of their learning process.
We all learn by being out of our depth at first. Even credentialed experts. And what good is knowledge that cannot be learned?
Rather than belittling the autodidacts among us, you could take opportunity to explain more to them. Autodidacts typically have eager, wide-ranging curiosity and will gladly listen.
PS: Even many with credentials in a subject are largely self-taught in that subject, haven’t you found? People who can’t teach themselves usually can’t learn much.
You speculated what I was interested in. I was clarifying what I was interested in and why.
I appreciate the clarification.
I may be very, very dense — probably from having no more than a MBA education — but I still do not understand how my discussing a matter about which I have no formal training but strong opinions is a source of embarrassment TO YOU.
Nor do I understand how my sitting down and shutting up will help me deepen my understanding of the subject or learn where I might be mistaken (if I am).
Of course, if I’ve stumbled into the wrong room – “this is Insults, Arguments is two doors down on the right” – I apologize. Shall I start insulting you personally, as you have done me?
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.
Are you saying that RomneyCare shouldn’t be a model for the rest of the States?
Doesn’t that put you at odds with Gov. Romney’s documented position?
Instead, the court requires broader definitions: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency is a good case for explaining the doctrine
You’re going to have to walk this dim layman through your logic here. Tahoe-Sierra Preservation Councilseems to hinge on the fact that the regulation only temporarily deprived property owners of the use of their property. RomneyCare requires Massachusetts citizens to spend their money PERMANENTLY on health insurance
Taxesare not mandates. Is exempting the poor from the RomneyCare fine a subsidy?
Tahoe has different facts, but I gave you the link because it discusses the doctrine that applies. Taking a portion of your money absolutely is not enough, it has to be all your money. Hence there aren’t many successful cases, despite the Fifth Amendment’s lack of a distinction between taxes and mandates. For more similar facts (a portion of the money absolutely taken), see Brushaber, on income tax as a taking.
Romneycare’s fine is essentially like a capped income tax. I suppose income taxes’ low or zero rates for the poor are sorta a kind of subsidy, sure. Medicaid, definitely.
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.
Are you saying that RomneyCare shouldn’t be a model for the rest of the States?
Doesn’t that put you at odds with Gov. Romney’s documented position? ·3 hours ago
I think Romneycare is a useful model law, but not one that should be widely adopted. If the single payer movement gets any stronger in Vermont, or other states reach the level of advocacy Vermont, it would serves as a decent lesser evil. If some states respond to Obamacare repeal by passing state analogs, which I would oppose, I think Romneycare would serve as a good example of better practice than Obamacare, particularly with reference to brevity, modesty, clarity, conscience (both at the taxpayer and provider ends), and harm mitigation.
Yes. Romney likes Romneycare a lot more than I do.
If you would like to add something to the conversation outside of trolling Stuart, then have at it. I haven’t seen Stuart discrediting anyone, merely engaging in an argument with James.
Tahoehas different facts, but I gave you the link because it discusses the doctrine that applies. Taking a portion of your money absolutely is not enough, it has to be all your money. Hence there aren’t many successful cases, despite the Fifth Amendment’s lack of a distinction between taxes and mandates. For more similar facts (a portion of the money absolutely taken), see Brushaber, on income tax as a taking.
I think you’re missing my point: you’re rebutting it with examples that do not apply.
I don’t regard income taxes or sales taxes or property taxes as a taking. They are taxes, which the government has a right to levy and I have a duty to pay. The government (through my elected representatives) decides how much of my money it needs to pay for its legitimate functions.
When the government then comes back to me and says, “By the way, the money we didn’t tax away you have to spend on what we tell you to,” that’s not a tax anymore. I get their argument if I want something in exchange, like car registration.
But not just for breathing.
I think you’re missing my point: you’re rebutting it with examples that do not apply.
I don’t regard income taxes or sales taxes or property taxes as a taking.
There is no special category of taxes in takings jurisprudence. None. It’s not in the Amendment’s text, nor in the cases. Taxes are like any other form of “purely economic regulation”. I don’t know what would help you here. I can link to more cases making the same point, if you think that would help.
I can show that the Obamacare challenges are not on these grounds. The most successful case (the SCOTUS one) does not reference takings at all. This site catalogs all 22 cases. This one is a takings case, but taking from the hospitals through changes in medicare payments, not about the mandate. It lost, and is unlikely to win on appeal. Other than that, I’m aware of no judicial consideration of the issue, even to dismiss it.
There is no special category of taxes in takings jurisprudence. None.
Help a brother out.
US Constitution, Art. I, Sec. 8:
US Constitution, Amendment V:
Clearly taxes are not intended in the Constitution to fall under the category of private property taken for public use, as they are levied without countervailing compensation (which would defeat the purpose of taxation). Thus the power to tax is separate from the power to take private property for public use.
Thus, when a citizen is forced to spend his own money (his property) on a product of the Government’s choosing, the Government is not taxing him — taking his money as taxes for Government expenditures — but is depriving him permanently of the use of that entire sum.
The language in the Massachusetts Constitution closely parallels Art. I, Sec. 8 and Amendment V.
Is this incorrect?
Edited 3 hours ago
Credentialism – I like it. Tell me, MJMack, do you have a law degree, or are you like me unqualified to think or vote?
Apparently a law degree from Google U has its advantages over Boalt or Harvard Law. For example, unlike those institutions, Google U doesn’t teach that the government doesn’t need to worry about taxing away citizen’s money because it can simply direct the citizens how they must use “their own” money to meet the government’s needs.
This is the world the lawyers have made for us. I find it sad that it’s the lawyers who tell us what good Conservatives they are that are at the vanguard of this Brave New World. ·
For what it’s worth, I think your questions have been helpful in teasing out ideas that I strongly suspect you were not alone in holding. In particular, you made explicit what I think might have been Prof. Rahe’s suggestion that Romneycare was a taking (I’m not sure), which is probably the best weak argument for unconstitutionality.
It’s not different. If some of a person’s real property is partially deprived of economic beneficial use, that’s not a taking either. It has to be substantially all of it; there are some horrible decisions for landlords out there; the government is certainly able to ruin you through regulations without a taking occurring.
Edit: It might help you to compare it to taxes, with the difference that if you can’t afford to pay the Romneycare fine, you don’t have to removing it even further from takings territory. When the government robs you of $5 while you top up your gas tank, they don’t then have to compensate you with a check for $5.
The government is allowed to exact taxes without offsetting compensation: that is why they are taxes.
The government is not allowed to take my property for public use without offsetting compensation.
When government regulation forces me to spend a sum of my own money on a government-mandated good, it deprives me of ALL economic benefit of that ENTIRE sum.
(Nice to see Romney gave a subsidy to the people too poor to pay the fine.)
For what it’s worth, I think your questions have been helpful in teasing out ideas that I strongly suspect you were not alone in holding. In particular, you made explicit what I think might have been Prof. Rahe’s suggestion that Romneycare was a taking (I’m not sure), which is probably the best weak argument for unconstitutionality. ·7 minutes ago
You might also consider that RomneyCare could be found Constitutional under the Massachusetts Constitution by the Massachusetts Supreme Court — and still be a very bad, anti-Conservative law.
The government is allowed to exact taxes without offsetting compensation: that is why they aretaxes.
The government is not allowed to take my property for public use without offsetting compensation.
When government regulation forces me to spend a sum of my own money on a government-mandated good, it deprives me of ALL economic benefit of that ENTIRE sum.
OK, so what you’re talking about is the denominator. Obviously, any imposition would be a regulatory taking if you defined the thing taken as being the interest harmed by the regulation. Instead, the court requires broader definitions: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency is a good case for explaining the doctrine (the interest that turned out not to be a taking was a deprivation of use of the property for a year). The taxes distinction you draw simply isn’t in the text or cases; taxes can be takings, but, practically speaking, rarely are.
Regarding the possibility that Romneycare is a bad, but constitutional law, see comments 110 and 111, above. This is also the position that I took in the earlier posts Prof. Rahe refers to in the original post.
Incidentally, I should probably take you through some of the early takings jurisprudence, too, and am happy to go into detail. I would appreciate it, though, if you would confirm whether or not we’re agreed that under current jurisprudence the leading scholars in the field have not thought the takings clause to be a strong argument against Obamacare.
In particular, the leading work on the subject of takings is by Professor Epstein, who is also a leading attorney on the SCOTUS case against Obamacare, but has not made a takings claim. He’s conservative (on this), originalist, keen to find persuasive arguments, and surely able to find any takings arguments that exist, and has not found any.
I’m keen to discuss the jurisprudential reasons why the takings clause doesn’t apply; and whether or not it would apply if the Constitution were properly understood, but I would like confirmation that this is what we’re doing, that you don’t believe that Professor Epstein and all the other anti-Obamacare lawyers simply forgot about a devastating argument.
I’m keen to discuss the jurisprudential reasons why the takings clause doesn’t apply; and whether or not it would apply if the Constitution were properly understood, but I would like confirmation that this is what we’re doing, that you don’t believe that Professor Epstein and all the other anti-Obamacare lawyers simply forgot about a devastating argument.
I’m not there yet.
Explain to me how the Federal or State government has the right to direct that I may not use my money (what they haven’t rightfully taxed from me, but what is colloquially called “mine”) for what I want to spend it on lawfully but instead must spend it to buy a product or service of the government’s choosing, one that I determine I neither want nor need and one which is not to satisfy a clear public use.
In bankruptcy, creditors have a claim on my money because of my contracts with them. In tort law, I’ve done something to create an obligation to someone I’ve harmed. In labor law, labor is exchanged for value.
What did I do to incur an obligation to anyone for healthcare?
Regarding the bolded bit; the doctrine governing this is, as I noted, discussed inTahoe. Did you read the relevant parts of the opinion and want more, or do you want me to explain the doctrine?
I’ve reread the Tahoe decision and I see nothing that relates to the doctrine you’re discussing. Can you quote the relevant text?
It still reads to me that the question in Tahoe was whether an interest in property could be divided into time slices. Since RomneyCare or ObamaCare require the citizen to spend his own property PERMANENTLY on something the citizen has decided he doesn’t want or need, the time slice question doesn’t apply.
Is my money not my property?
….but I would like confirmation that this is what we’re doing, that you don’t believe that Professor Epstein and all the other anti-Obamacare lawyers simply forgot about a devastating argument.
I’m not there yet.
In bankruptcy, creditors have a claim on my money because of my contracts with them. In tort law, I’ve done something to create an obligation to someone I’ve harmed. In labor law, labor is exchanged for value.
In bankruptcy, the government says that the money you have loaned to someone else is no longer your money. The government breaches your contract. I think in the other two cases you see how the government moves money from one person to another, but you’re arguing that they’re fair; it seems you want to argue policy, which is a separate subject.
The explaining, though, is normative; what the law should be. I’m asking you to accept the descriptive fact that the various expert Obamacare foes clearly do not believe that the takings argument is a winner, or even a potential winner, as demonstrated by their using many other arguments, but not that one.
The explaining, though, is normative; what the law should be. I’m asking you to accept the descriptive fact that the various expert Obamacare foes clearly do not believe that the takings argument is a winner, or even a potential winner, as demonstrated by their using many other arguments, but not that one.
Are you prepared to swear on a stack of Bibles that if the arguments they are using now fail, they won’t develop a takings argument? You haven’t pointed me to where Prof. Epstein says it’s a dead argument – perhaps he can join this thread and explain why and how it is, if it is.
And I am pointing out that the Government moving money from one citizen to another with whom I have a contractual or even tortious relationship is not the same as the Government requiring me to purchase a product or service from an individual or firm with whom I have no prior relationship. I never previously bought from or worked for or ran my car into the health insurer, but the Government says I have to buy its product? It’s a qualitatively different government action.
Are you prepared to swear on a stack of Bibles that if the arguments they are using now fail, they won’t develop a takings argument? You haven’t pointed me to where Prof. Epstein says it’s a dead argument – perhaps he can join this thread and explain why and how it is, if it is.
I will write more; today’s just been super busy and I’m turning in now. In short, though, Epstein hasn’t said that it’s not a strong argument, but if you’re in a law suit that makes a large number of claims and there’s a claim you don’t make, it’s very, very, unlikely that this is because you’re saving it for a future case. If there’s dozens of law suits being litigated on the same subject, each with a large number of claims, and none of them resting on a particular theory, it’s even more unlikely that this is because they all conspired to hold back on it. This is particularly the case if you want the SCOTUS in a hurry.
You’re repeating your earlier error where you failed to find the power to pass laws in Article X. The power of eminent domain doesn’t come from the Fifth Amendment, which, like Article X, is a limitation on the powers granted in the body of the Constitution, not a source of powers nor a limitation on one power only. Unlike Article X, the Fifth Amendment was passed subsequently to the articles limited by it.
There are many other areas where the government transfers money or other financial resources from one person to another; bankruptcy, tort law, labor law, and so on. It’s all, like taxes, purely economic regulation from the perspective of the Takings clause.
Regarding the bolded bit; the doctrine governing this is, as I noted, discussed in Tahoe. Did you read the relevant parts of the opinion and want more, or do you want me to explain the doctrine?
Article X is weaker than the Fifth Amendment, but the Fifth Amendment is incorporated against Massachusetts by the Fourteenth.
Hey, remember me, and this? Looks like I wasn’t wrong at all. A mandate-penalty is the same exact thing as a TAX. Both/all suck. Therefore, Mittigating circumstances rule, and please, please support Romney.