Talking Points Memo has a great write up on the number of conservative scholars who have concluded that the U.S. Constitution’s interstate commerce clause provides sufficient constitutional authority for Congress to pass the health insurance mandates in the health care reform bill.

In short these conservative constitutional scholars conclude that the United States Supreme Court would have to ignore long-held precedent in order to find that the health care bill is not a constitutional exercise of Congress’ interstate commerce regulation power.? Precedents, including, recent Supreme Court opinions written by Justice Scalia.

But Lawrence O’Donnell on last night’s MSNBC Countdown just mentioned something I’ve been thinking for awhile.? There’s an entirely different constitutional basis to support the so called “mandate” that is legally stronger than even the commerce clause: the power to tax.

The use of Congress’ tax power to advance social policy is considered to be even broader than the power to regulate interstate commerce.? Even during the height of the Anti-New Deal Court jurisprudence (before “the switch in time that saved nine”), the Court recognized the term “general welfare” in Art. I,? Sec. 8, Clause 1 of the U.S. Constitution refers to the legislative power to tax.? See, United States v. Butler (1936), 297 U.S. 1 (Justice Roberts’ majority opinion).

The Court has recognized that even when the amounts raised is so low that it is likely that the measure is not designed to raise revenue, but for solely regulatory purposes, the Congress may constitutionally use its tax power: to regulate (prohibit) gambling (United States v. Kahriger (1953), 345 U.S. 22), regulating (prohibit) narcotics (United States v. Doremus (1919), 249 U.S. 86), regulating firearms (Sonzinsky v. United States (1937), 300 U.S. 506), and even regulating colored margarine (McCray v. United States (1904), 195 U.S. 27.)? Congress’ war on Americans’ margerine rights knows no end.

It’s hard to imagine how any Court could construct a brightline rule that ruled that the health insurance so-called “mandate” is unconstitutional that would not also render Medicare, Medicaid, SCHIP, Social Security, COBRA (the “R” stands for… reconciliation) and the federal unemployment insurance programs are all also unconstitutional.

But, Modern, doesn’t it matter that the insurance “mandate” requires you to buy a product from the private sector? No.

And again, no.

Remember that what is being called a “mandate” exists solely as a tax penalty.? Failure to have qualified health insurance, unless you meet the income exemptions under the statute, results in a $1,000 tax penalty assessed by the IRS.? There’s no criminal violation, nor is there an otherwise civil administrative fine.? You just wind up paying more in taxes.

Whether you phrase it as a tax credit or inversely as a tax penalty, the federal tax code “mandates” private sector economic behavior far more strongly than this health insurance “mandate.”

The federal tax code encourages you to: be a private home owner, drive a hybrid, carry liability insurance as a business, go to college, pay off your federal student loans (even if they’re privately held), private companies to own (rather than lease) the means of production, etc.? In short, anyone who has used TurboTax or otherwise done their own taxes knows that Congress has used the tax power to prohibit or encourage a large number of private economic activity that benefits the private sector.

Every deduction or tax credit you’ve taken is a Congressional “reward” for engaging in entire private sector economic activity that Congress wished to encourage.? Conversely, there are tax penalties that have been upheld when Congress has sought to “punish” or discourage certain private sector economic behavior.

While you can politically make an argument that using the power to tax for “socially engineering” and such a political view may, in fact, be popular, you cannot, however, make a constitutional argument on those grounds.

And Mike DeWine knows that Congress can use the taxing power to further access to health insurance.? After all, he’s been a champion of using Congress’ power to tax to create Medical Savings Accounts.? It’s amazing that not a single reporter pointed that out in covering Mike DeWine’s press release yesterday.

John Kasich and Rob Portman, too, were champions of using the federal tax code as a means of solving the uninsured health care crisis in this nation like DeWine.? (Also, John Kasich’s 1997 Balanced Budget Act?… yeah, it led to the creation of S-CHIP, the federal entitlement program giving health insurance to children.? Wonder if Kasich has ever mentioned that to his Tea Bag buddies.)

And now, DeWine and Portman are claiming that the constitution does not permit Congress to use the tax power to create a “mandate” that encourages Americans to carry health insurance.

There are not one, but three constitutional provisions that directly support the constitutionality of the health care bill:

  • The taxing authority of Congress (Art. I, Sec. 8, Clause 1)
  • The authority of Congress to regulate interstate commerce (Art. I, Sec. 8, Clause 3)
  • And, the “necessary and proper” clause relating back to the first two clauses cited above (Art. I, Sec. 8, Clause 18).

What’s funny is that Mike DeWine was a leading advocate in Congress against frivolous lawsuits, now he’s running on a platform to file one.

  • darkejournal

    dang. you wrote all that and nobody bothered to comment. well, here you go. i'll give you a comment. you're wrong. delude yourself all you want.

  • LOL. Dude. You won't get far answering Modern in this way. He'll crush you.

    “you're wrong”


  • modernesquire

    Oh, well, if you said I'm wrong, then I must of just made up centuries of U.S. Supreme Court precedent then… Silly me.

    Do you actually have a factual point to make, or are you just going to engage in silly playground name calling?

  • nah nah nah nah nah you can't beat Modern at arguing!

    [sticks out tongue]

  • darkejournal
  • OK. Looks like it's on. I'll hang up and listen while I go search for sites that have done the hard work for me that I can just link. Modern, all yours!

  • darkejournal

    why should i write it all out when has it nailed to the wall?

    i actually read that article and was a little disappointed. i was hoping the dems would choke on this disaster for the next several decades.

    and how in the hell did they leave out the part on pre-existing conditions for kids? could it be because that provision would cause premiums to skyrocket immediately? sorry – that was a little cynical

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  • modernesquire

    Um, I won't quote DailyKos as authority if you don't quote Reason.

    Regardless, the article was not written by a lawyer or a constitutional law scholar.
    And it doesn't even address the legal argument I raised about the taxing power. Remember me saying this?
    “The use of Congress? tax power to advance social policy is considered to be even broader than the power to regulate interstate commerce. “

    Yeah, your Reason article never addresses that.

    Putting aside those “minor” issues, you seem to gloss over the Supreme Court precedent the article actually DOES cite actually supports the argument. If the Congress can constitutionally use the interstate commerce clause to regulate the farming activities of a small farmer who sells all his produce INTRASTATE, then Congress can regulate health insurance.

    The only Supreme Court case he actually cites, U.S. v. Lopez, is a case where the Supreme Court held that Congress could not use the interstate commerce clause to justify banning handguns near public schools.

    However, this is not Lopez, or anything near the situation in Lopez. The Supreme Court has already ruled that Congress has the authority to regulate insurance through the commerce clause:
    “Perhaps no modern commercial enterprise directly affects so many persons in all walks of life as does the insurance business. Insurance touches the home, the family, and the occupation or the business of almost every person in the United States.” United States v. Southeastern Underwriters Assoc. (1944) 322 U.S. 533, 533.

    You, and “Reason,” frame the issue on a flawed and false pretense. Your “non-economic” activity BECOMES economic activity once a self-insured person (a person who carries no health insurance) seeks medical care. And it is THAT clearly economic activity the so-called “mandate” seeks to redress.

    You can quote all the libertarian non-scholars you want, but they're making a POLITICAL argument not a CONSTITUTIONAL one.

  • Lex

    Wow, a tax credit, not assessing taxes, letting me keep more of my money is a “reward.”

    Just who do I work for?

  • Andy

    Nothing about this bothers you? Forget the legality. What about on an intuitive level?

    Is there nothing outside the reach of the Commerce Clause? Depending on how deep you dig, something or another substantially affects interstate commerce. My decision to buy a scanner means that paper producers are less profitable. So, let's regulate it. Let's tax it. My decision to stay at home to and make a sandwich, when multiplied by a million, means that Outback Steakhouse, Applebees, and TGIF Friday's don't make as much money; my decision affects how much they charge for the food that others eat . Let's allow Congress to tax (or withhold from me the benefit of not having taxed me) my staying at home to eat?

    I appreciate your scholarship, I really do. But now, counselor, make the legal case for the other side? Or, at least on an intuitive level, can your gut get a little queasy too?

  • Concerned G

    Driving an automobile is privilege, not a right. Therefore, placing conditions, conditions such as mandating automobile insurance, seems legal and prudent.

    But what about people who don't own a car, who don't drive? Should the government tax or fine those people? After all, when those people are struck by uninsured drivers, when they are unable to work or pay their bills because of the resulting injury, does it then BECOME commerce, does it then result in a substantial affect on interstate commerce? And since “Insurance touches the home, the family, and the occupation or the business of almost every person in the United States.” United States v. Southeastern Underwriters Assoc. (1944) 322 U.S. 533, 533 , all is fair game, yes?

    What's more, taxes are usually supposed to have as a primary purpose the raising of revenue. You correctly cite cases that allow taxes when the revenue collected is slight and the true purpose is regulation. Again, what is the limit to this rule? Let's tax sleeping more (or less) than 8 hours a day. Sleeping more than eight hours reduces economic productivity and results in higher instances of burglaries — both of which substantially affect interstate commerce. Thus, for the general welfare the government can tax it?

    Oh, but that is ridiculous example. Substantive Due Process allows a privacy right in one's bedroom, including one's sleep. Well, does Substantive Due Process mean that the government can compel me to speak, compel me to reveal to an insurance company that I have cirrhosis from years of alcohol abuse? If the uninsured's going to the hospital for treatment transforms the event into commerce, then does the requirement to reveal the cirrhosis fall under the lesser-protected category of commercial speech? A $1,000 fine or tax awaits me if I don't acquire health insurance and tell the insurance agent my medical history?

    Wasn't liberty once defined as the right to be let alone? Apparently the Commerce Clause and the General Welfare Clause are rewriting the definition. Surely this is the government of limited powers that the Framers and Ratifiers envisioned.

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