4 thoughts on “Health Care Reform and the Constitution

  1. If a court were to find the mandate unconstitutional, it would axe that portion of the legislation. Since neither of the two funding mechanisms under discussion (surtax on the wealthy, Cadillac plan tax) rely on taxing people who willingly forgo insurance today, this would not effect the solvency of the bill. It would instead take a toll on the bottom line of insurers who are banking on the mandate largely offsetting the costs associated with the bill.

    This would have likely been an issue (for the legislation’s survival) had there been a large public option in the bill or had it been funded by taxing all insurance plans, but it’s not. So, presupposing that Will’s right (I doubt it, but I’m not expert), it would result in legislation that would carry all of its popular benefits (subsidies, standards of care, banning discrimination on preexisting conditions, etc) and slough off what will likely turn out to be its least popular provision (the mandate) once young people start paying a few grand a year for insurance they don’t think they need.

    Looking further ahead, the negative impact on insurers would cause premiums to rise and probably make a public option look like a better idea for future legislation. I don’t know that Will’s thought this out; does he thing an adverse ruling by the Supreme Court invalidates the whole bill?

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  2. Actually I think the question is can Congress impose a tax on not being covered with insurance since the ‘mandate’ is not actually a criminal penalty. I think it probably could.

    But if that’s not the case its pretty certain Congress could impose a ‘head tax’ (say $3,000 per person) or income tax increase with a refundable credit if you have health insurance. Then you have your mandate well within any reasonable Constitutional argument.

    Going beyond that, http://www.marginalrevolution.com/marginalrevolution/2010/01/if-only-we-had-the-stomach-for-this.html cites Paul Starr’s idea which is essentially make the mandate more into an offer you can’t refuse. Specifically anyone who doesn’t opt to be insured will have a 5 year exclusion from receiving any subidies to buy insurance, will not be protected from the ‘no-pre-existing condition’ requirement on insurance companies, and so on.

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  3. Ahem….

    http://www.ordinary-gentlemen.com/2009/12/taxes-where-political-and-constitutional-expediency-collide/

    and also

    http://www.ordinary-gentlemen.com/2009/09/that-horse-it-left-the-stable-long-ago-we-called-him-seabiscuit/#more-8927

    Whether it would be constitutional under a pre-New Deal interpretation is, of course, an entirely different story. But I have a hard time finding that it would be unconstitutional now without overturning quite a few years’ worth of precedent.

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