THCB

Rejecting Affordable Care Act Is Rejecting Constitution

Next week, while the Republicans continue their search for a candidate to stand against President Obama in the fall election, the president’s central legislative triumph – the Patient Protection and Affordable Care Act of 2010 – will come before the Supreme Court. The justices have the power to declare the law unconstitutional and thereby kill “Obamacare” before it even leaves the birthing chamber. While some believe that such an outcome would be proper, we disagree. A court decision overturning the Affordable Care Act would be an egregious misreading of the Constitution.

The critics’ central constitutional claim is that the 2010 law’s individual-mandate provision exceeds Congress’ regulatory authority. In essence, this provision requires a broad swath of Americans to procure health insurance conforming to certain federal standards. Those who do not procure this insurance must generally pay a “penalty” to the IRS.

Had the bill explicitly used the word “tax” instead of “penalty,” the fatal flaw of the constitutional challenge would be obvious to all. The Constitution undeniably gives Congress sweeping power to tax. And if Congress can tax a person, and then use that tax money to buy a health-care package for that person’s benefit, why can’t it simply direct the person to procure the package himself, or else pay a higher tax?

Of course, tax is a word that lawmakers try to avoid at all costs, and so the euphemistic penalty won the day. Yet, as Shakespeare reminds us, “a rose by any other name would smell as sweet.” Here, penalty and tax are simply two ways of saying the same thing.

Indeed, the Constitution itself does not always use the T-word when referring to taxes, broadly defined. It also uses the words excises, duties, and imposts in the opening sentence of Article I, Section 8, and elsewhere refers generally to all generic “Bills for raising Revenue.” The important thing here is not the term, but how the actual instrument functions, and clearly Obamacare functions as a tax – as a revenue measure. In perfect synch with the Constitution’s key word, revenue, the penalty section of Obamacare is in fact codified in title 26 – the Internal Revenue Code. The “penalty” is paid to the IRS via forms administered by that very same IRS.

Once we see that the “penalty” is a tax and that Congress has the power to tax, the constitutional case against the law collapses.

But even if the law were not a tax, it still easily passes muster as an exercise of a second key power of Congress – the power to regulate interstate commerce.

There are two questions here. First, is health-care insurance a genuinely commercial issue? Of course. Insurance is a classic economic issue of who pays for what.

Second, does health care raise genuinely interstate issues? In other words, does Obamacare address a problem that truly spills across state lines? Yes, of course.

At any given moment, millions of Americans are in states other than their home state. If they fall sick, they will go to local emergency rooms. But an obvious interstate problem arises when sick out-of-state patients lack insurance, and their emergency-room visits end up being paid for by host-state taxpayers. Obamacare solves this problem by generally requiring Americans to get insurance.

Another interstate problem: When an employed person gets a better job offer from an out-of-state employer, he may not be able to take the job – and thereby contribute more to his family and the general economy – without a rule requiring his new employer to cover his preexisting medical conditions. By imposing this requirement on employers, Obamacare creates greater interstate labor mobility in perfect harmony with the core purpose of the interstate commerce clause.

To our friends in the tea party who think the American Revolution is on their side, we say, think again. The rallying cry of the American Revolution in 1776 was “no taxation without representation!” But the 1787 Constitution’s big idea was taxation with representation. Bluntly, the Constitution was a pro-tax revolution. It aimed to give a representative Congress broad power to tax and to regulate – to do all sorts of things that Parliament could not properly do precisely because the new Congress, unlike the old Parliament, would be elected by American voters who could vote the bums out if we disliked the taxes, or the duties or the excises or the imposts or the penalties or the regulations. Whatever.

The federal government represents voters, so it can tax voters and impose mandates on voters, whether these mandates oblige constituents to join militias or buy muskets (as did the Militia Act of 1792, signed into law by President George Washington), to serve on juries, or buy health-care insurance.

The proper check when Congress has acted within its constitutional power is political, not judicial. So if some justices don’t like the law, they should indeed vote against it – not on the court this spring, but in the election this fall.

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. Todd Brewster is the Don E. Ackerman Director of Oral History at West Point and director of the Peter Jennings Project for Journalists and the Constitution. This post first appeared in the Philadelphia Inquirer.

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Republicaeridg ryanboat for saleJohn BallardElad Gross Recent comment authors
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John Ballard
Guest

Somebody open a window. I need air… ~~~~~~~~~~~~~~~~~~~~~~~~ Readers go check out Margalit Gur-Arie’s blog. She’s smokin’! Another pearl from the March 27 arguments was the realization that the States concede that the Federal Government has the power to require that people pay for health care with insurance. They only differ on the timing of buying the necessary insurance instrument, with the State Governments insisting that a free citizenry should have the right to purchase insurance en route to the ER, if they so choose, and the Feds arguing that they must buy insurance the day they are born. Does… Read more »

John Ballard
Guest

HOO-wah!
You talk like a Ron Paul supporter.

Those of us at the far left lunatic fringe speak of corporatocracy or plutocracy. We may yet find common ground. Thanks for your candor.

Republicae
Guest

“All Power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are no other sources. All delegated power is trust, all assumed power is usurpation. Time does not alter the nature and quality of either.” Thomas Paine Freedom that is contingent upon compliance is not Freedom! I am far more radical than most Ron Paul supporters, as a militant Jeffersonian I tend to see solution is the dissolution of this now failed Union, heavily centralized and consolidated under the auspices of a bureaucratic Mercantilist regime, and new guardians deputized for the purpose of… Read more »

John Ballard
Guest

…curator of the supremacy within the restrictive spheres of action and is bestowed no powers beyond any other governmental branch… That is elegant, almost Biblical in tone. I’m thinking the author may have a background in theology because homilies are written with that kind of rhetoric. I am not persuaded, however, because I, too, am one of those “people” and we are a large but mostly far less articulate group. There is an old saying among lawyers that if your client is innocent, argue the facts. But if he is guilty, then argue the law. And for the last three… Read more »

Republicae
Guest

Actually Mr. Ballard, this federal regime is siphoning wealth through various means, primarily through the process of fiat monetary substitution of asset values. The entire system is corrupt, cankered and rotten with the blackness of official Mercantilism, a government Patronage system using every means to maintain and further its power inspite of the LAW. It uses the cloak of legitimacy to conceal the depths of its own lack of concern for the LAW. This government, long ago, rejected the very LAW that was used to create it and control it. The Compact has been abridged, it is no longer operational… Read more »

Republicae
Guest

Today, it is difficult to grasp the concept that the United States government has absolutely no authority but that, which is specifically provided to it by the Constitutional Compact. In order for any law to be the supreme law of the land it must, by definition, be in complete confirmation of the specific powers delegated within the Constitutional Compact, there can be no question of supremacy without a law meeting such confirmation. If any law does not meet with such qualifications then that law is void and null. While there has been a tendency for the Supreme Court to operate… Read more »

John Ballard
Guest

Oh, this is by no means a dead issue as this morning’s SCOTUS arguments show. Thanks to a chorus of complaints the matter has taken on the dimensions of a lynch mob. It seems Justice Scalia and you would be in agreement about opting not to be insured. I just came across this a while ago. Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm—even though, one day that will describe all of us. Or… Read more »

ridg ryan
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ridg ryan

Thank you for your kind reply. If the point in exhausted, please ignore the following. The point I don’t understand is that, even though driving is optional, people drive without insurance all the time. Every time they are caught, there is a fine and the possibility of arrest and suspension of their license. Somebody, like the Christian Scientists, doesn’t believe in modern medicine. Therefore, to some extent, health care is optional. It is nearly always an option for someone sick or injured at home to not go to the hospital and either try to deal with the problem or choose… Read more »

ridg ryan
Guest
ridg ryan

I have listened to a lot of arguments regarding the ACA but haven’t heard the one that differentiates the requirement for people to by car liability insurance in order to drive and health care insurance in order to get health care. Why are these so different?

John Ballard
Guest

Two differences. First, driving a car is optional. No one is obliged to own and operate a car. Second, liability insurance is required to protect others. Collision insurance (thankfully for those of us driving old cars) is not a requirement. The purpose of the mandate that everyone have health insurance is more about balancing the risk pool than furnishing medical care. Insurance is about risk management, not medical care. (The ultimate insurance is life insurance but the beneficiary only collects when the insured dies. Because the risk pool is certain, insurance again becomes optional.) I heard a suggestion on C-SPAN… Read more »

boat for sale
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Wow, wonderful blog structure! How lengthy have you been running a blog for? you make running a blog look easy. The overall glance of your web site is magnificent, let alone the content material!

John Ballard
Guest

Five minute history lesson about taxes, by NPR.

http://www.npr.org/blogs/money/2012/03/22/149058446/from-abe-lincoln-to-donald-duck-history-of-the-income-tax?ft=1&f=93559255

Readers who think NPR is just another socialist propaganda source may skip this tedious few minutes and go directly to the Disney propaganda (1943) which is the linchpin of the argument.

http://youtu.be/00u6qUelp6c

Nate Ogden
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Nate Ogden

“without a rule requiring his new employer to cover his preexisting medical conditions.”

Wow Yale must really be scraping the bottom of the barrel these days. How can a professor of law never have heard of HIPAA? If I was one of your students I would be demanding a refund.

“director of the Peter Jennings Project for Journalists and the Constitution. This post first appeared in the Philadelphia Inquirer.’

Can we assume this glaring error will be corrected in the Philadelphia Inquirer?

MD as HELL
Guest
MD as HELL

There are too many exceptions and exemptions to make this law pass Constitutional muster. An individual writing a check for a service local service is not usually considered interstate commerce. In the case of healthcare the patient assigns benefits of his/her policy to the provider. As for indigent out of state patients, no one pays those bills. The tax payer has nothing to fear. They simply are unpaid. They had the cash to get there, but no to be sick there. The mandate clearly is beyond the power of Congress to command and demand commerce or else.

BobbyG
Guest

No, it’s NOT clear. Which is why it’s now before SCOTUS.

DeterminedMD
Guest
DeterminedMD

Oh, and by the way, what a wonderful example your leader in the White House set so recently by sending his 13 year old daughter to Mexico for a Spring Break, with 25 Secret Service agents in tow. Let me just offer to educate readers who actually think for themselves and respect how their behaviors and actions impact on the society around them (as I know my writings are just gibberish to the usual suspects who just genuflect to while echoing their leaders and failed political party rhetoric garbage), in relating to people who say one thing and do another,… Read more »

Margalit Gur-Arie
Guest

To the Tax argument: Casually adding “penalties” to the enumerated list of “excises, duties, and imposts” is very similar to what Congress really did with this law – eschewed the word Tax precisely so it could eschew the political “proper check”. True representative government should not be at liberty to obfuscate legislation language in order to do things that are in stark contradiction to the wishes of those it represents. Removing the judicial check will pave the way for Congress to bury true intent into today’s usual and customary thousands of pages of legislation and enact legislation that would not… Read more »

Nate Ogden
Guest
Nate Ogden

Well said!!!!

Elad Gross
Guest

I second Mr. Ogden. Additionally, the tax argument is not so lock-tight in light of legal precedent. The Supreme Court has held that a tax that is a penalty is impermissible. While the writers may be correct that the Court will construe the penalty here as a tax, the situation is really not so simple. There is a very powerful argument that the penalty in the Act is just that, and that the tax argument will hold little water in the final opinion. To the Commerce argument: The Court has also held that Congress need not provide explicit findings regarding… Read more »

DeterminedMD
Guest
DeterminedMD

Why don’t we just ask the judges to hold their decision until 2014 to convenience all the people who benefit from the legislation and can leave office without accountability. Sheesh, this blog just won’t give it up pushing all the defenders and apologists to keep spewing their biased and partisan opinions trying to make us believe the lies should be embraced and not challenged. Does anyone reading here have some hesitation or trepidation with the way some posts are just dismissing there are any consequences to PPACA? How about this link from Senator Johnson: http://online.wsj.com/article/SB10001424052702304724404577289363234579868.html?mod=WSJ_Opinion_LEADTop#printMode I like the last sentence… Read more »

BobbyG
Guest

Nicely put.

6-3 to uphold.

Minimally 5-4 to uphold.