RSS FeedDefending the Individual Mandate
Robert Pear has a piece in the Sunday Times about the administration’s defense of the health reform law’s individual insurance mandate. The headline—Changing Stance, Administration Now Defends Insurance Mandate as a Tax—has a bit of a “gotcha” flavor to it, but that’s fair enough. The story itself discusses constitutional challenges under both the taxing power and the commerce power, but it doesn’t leave its readers with a clear sense that these are two separate issues; and it leaves out one obvious but crucial piece of context: the government only needs to win one of the two arguments for the law to be upheld. Congress doesn’t need to act under both the commerce clause and the tax clause to create a valid law. One source of constitutional authority will do. Lack of clarity on that point and conflation of the two constitutional issues may leave readers with the feeling that the law’s challengers and defenders are evenly matched. They’re not.
As I’ve written many times before, the argument that the individual mandate exceeds the commerce power is not frivolous and may even be a close call. The weight of Supreme Court precedents probably favors deference to legislative judgment, but there are opportunities aplenty for the Court to distinguish the issue from prior cases and to articulate a new rule defining the outer bounds of the commerce power.
But while the commerce clause argument gives the mandate’s challengers a leg to stand on, the taxing and spending clause does not. Congress’s power of taxation is limited only by the requirement that any tax laid be conducive to the general welfare; and Congress decides whether a tax is conducive the general welfare. Pear’s article is fine up to this point. But then we get this:
Opponents contend that the ‘minimum coverage provision’ is unconstitutional because it exceeds Congress’s power to regulate commerce.
And that’s followed by Orrin Hatch and various other conservative politicians’ statements about mandates exceeding the commerce power, followed by the administration’s response to the commerce clause arguments. But not another word about the taxing power.
And that’s the problem. The article makes it sound like the administration has the upper hand on the taxing clause (a.k.a., the “general welfare clause”) argument, but the challengers are still in the fight and coming out swinging with their commerce clause argument. But it’s not really like that. Because you can’t answer a general welfare clause argument with a commerce clause argument. And if the government wins on either issue, the fight is over.
What’s more, not only does the article fail to alert readers on that decisive point, it also glides right by this essential observation: that the challengers have no legal argument at all to dispute the validity of the mandate as an exercise of the taxing power.
It’s as if the administration is arguing that Congress can get 2 by adding 1 + 1 or 3 + -1, and the challengers are responding that negative numbers don’t count.
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[...] defense of the individual mandate, which hinges on the government’s power to collect taxes. Jim Hufford breaks it down: [Even if] the commerce clause argument gives the mandate’s challengers a leg to [...]
[...] Frakt points to this post by Jim Hufford who argues that conservatives misunderstood Robert Pear’s big health care [...]
[...] my post yesterday, I criticized Robert Pear’s Sunday NYT article for eliding commerce power arguments [...]
[...] I can’t say I strongly disagree with either of those propositions, even though I believe the mandate should ultimately be found constitutional. But nevertheless there are signs of trouble ahead. As Professor Balkin writes, Judge Hudson clearly “tipped his hand [as sympathizing with the challengers] in the way he describes the case,” framing the issue as whether the federal government can force individuals to participate in commerce and collapsing the taxing power argument into the commerce power argument. [...]