I’m beginning to wonder how the health care bills that have been passed by the House and Senate can be constitutional.
Let’s consider a healthy 25-year-old who lives in California and never travels outside of the state. As a matter of federal law, he will be required to purchase health insurance. If he uses the health insurance it will be with a doctor or hospital within California. Forcing this guy to buy insurance is not one of the enumerated powers of the federal government (see Section 8 of Article I of the Constitution). Expansion of federal power is typically put through under the “To regulate Commerce with foreign Nations, and among the several States” clause, also referred to as “Interstate Commerce”. But in this case the Californian never leaves his state. The health insurers are prohibited from doing business across state lines. The doctors are licensed just in California and are prohibited by other states from practicing anywhere other than California. How can this be interstate commerce?
Now let’s consider the 14th Amendment, which guarantees “equal protection of the laws”. This was originally imposed by the Feds upon the states, but I think it has been interpreted to apply to the federal government as well. Let’s stick with our Californian. He will be hit with higher state taxes to pay for Medicaid patients in California. He will be hit with higher federal taxes to pay for Medicaid patients in Nebraska. Overall he will be getting a very different deal than citizens of Nebraska (source).
Suppose that our Californian is not among those fortunate enough to work for the government. That means it is 93 percent probable that he does not belong to a union. He will be subject to a tax on health insurance provided by an employer; a government worker, autoworker at a government-owned car maker, or worker at a munitions plant who belongs to a union will not pay the tax (more; this is a recent promise by Barack Obama and the Democrats in Congress to their union supporters).
The Californian’s in-state decision to purchase services that are illegal to sell across state lines is being regulated by the Federal government. The Californian is paying higher taxes for a federal program than a Nebraskan simply because he is a Californian rather than a Nebraskan. The non-union Californian is paying a tax that union workers nationwide are exempt from. Where is his and California’s protection from intrusive federal regulations? Where is his equal protection under the law compared to a union worker in Nebraska?
How can these new schemes not require an amendment to the Constitution?
Some references (all written before the decision to tax union members differently from other U.S. citizens):
- WSJ article from September 2009 by a former state judge
- UPI article on planned Florida challenge to the Supreme Court
- Christian Science Monitor on potential South Carolina challenge to the Supreme Court, based primarily on the favoritism toward Nebraska citizens
- Cato Institute piece saying that a penalty assessed through income tax is not an income tax and therefore is not covered by the 16th Amendment
I think it’s probably the General Welfare clause, not the Interstate Commerce Clause, that is involved here.
Daniel: Okay, I found that line. But right after, it says “but all Duties, Imposts and Excises shall be uniform throughout the United States”, which would seem to rule out the disparate treatment of California and Nebraska.
See http://en.wikipedia.org/wiki/Wickard_v._Filburn:
“Production quotas under the Agricultural Adjustment Act were constitutionally applied to agricultural production that was consumed purely intrastate, because its effect upon interstate commerce placed it within the power of Congress to regulate under the Commerce Clause.”
Property rights are explicitly protected by the constitution yet the Supreme Court has now told us that when states have some desire to take your property they may do so. How is minimum wage reconciled with Article I, Section 10 (congress can not interfere with contracts)? Because constitutional protections (except for some around speech) are largely gone. One legalism after another has left us in a position where the English of the constitution is largely meaningless or so we are told.
I suspect the Nebraska thing will take the form of a rebate or some other financial trick – if that line even applies to governments as well as citizens.
> Now let’s consider the 14th Amendment, which guarantees “equal protection of the laws”. This was originally imposed by the Feds upon the states, but I think it has been interpreted to apply to the federal government as well. Let’s stick with our Californian. He will be hit with higher state taxes to pay for Medicaid patients in California. He will be hit with higher federal taxes to pay for Medicaid patients in Nebraska. Overall he will be getting a very different deal than citizens of Nebraska (source).
Isn’t this silly?
“Let’s stick with our Bostonian. He will be hit with higher federal taxes to pay for interstate highways in far away states like Nebraska, few of which he will ever use, in comparison to a resident of Nebraska; nor does he particularly benefit from the trucking since he lives in a major port. Overall he will be getting a very different deal than citizens of Nebraska (source).”
gwern: In your “silly” example, you use interstate highways. The Constitution specifically grants the federal government the power to regulate interstate commerce. It has been demonstrated that trucks driving on an interstate highway in Nebraska will often continue into other states. That is a very different situation than a resident of California who receives medical care in his or her home town. It is not clear how the latter can be considered “interstate commerce”. Nor is it clearly “general welfare” because, unless the Californian is being treated for a flu epidemic, the care affects only one person’s health, not the health of the entire nation.
The requirements to purchase insurance will most likely be formed as part of the Internal Revenue code. The Supreme Court has always taken a more relaxed constitutional stance with anything related to income taxation (and I’m sure we can imagine why).
Not that it’s a satisfying answer from a scholarly perspective, but if the Supreme Court is okay with it, then it’s constitutional.
Wickard v Filburn is a good one, and one that enabled the Federal government to take the role it has today. However, I think the fact that doctors are prohibited against practicing medicine in states in which they are not licensed is a distinction.
Imagine a situation where Ohio and Indiana do not allow for importation of wheat. In this case, no interstate commerce could be affected, since both states have agreed they don’t allow such commerce.
I fwd this thread to a friend of mine, a lawyer from New York, and she had this to say to argue that the health care bill IS constitutional:
“Essentially his whole argument is that because his singular, imaginary Californian never leaves the state that this bill should not fall under Interstate Commerce? Besides there are lots of federal regulations with state limitations, Banking comes to mind. Insurance. Farming. Lots of things fall under the ICC even when it is a stretch. I seriously doubt that even the Robert’s Court is going to reduce the scope of ICC.”
Recent additional opinion piece in the WSJ:
http://online.wsj.com/article/SB10001424052748703278604574624021919432770.html
The key points:
First, the Federal Government is forcing you to purchase something (insurance) simply because you exist. This is unheard of – even taxes require you to do something (earn income, spend money, own property). While some of these are challenging to avoid in life, they affect actions that you make – not simply the fact that you exist.
Second, the blatant buying of votes or ‘cash for cloture’ makes the provision of benefits unequal between states (and is morally repugnant) which raises questions about the claim of ‘general welfare’.
Third, forcing the creation of benefits exchanges tramples on states rights making the states merely administrators of a Federal program.
Overall, I agree with @H above that the growth of the Federal Government long ago eclipsed the text of the constitution rendering it a largely a relic at this point.
Mock & Tolin: The Constitutionality of the Health Insurance Tax
Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance “Tax”, 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:
With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”