PPACA’s Big Day

The Supreme Court will hear several challenges to PPACA on March 28.

Their decisions will probably come down in late May or early June. Earlier is possible, but I wouldn’t wager on that.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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69 Responses to PPACA’s Big Day

  1. Troublesome Frog says:

    What do you think of all these challenges? I’m no constitutional scholar, but they all seem to be reaching. That is, if most of the laws Congress passes these days are constitutional, I really don’t see what’s so special about PPACA that it might be unconstitutional.

  2. James Hanley says:

    I haven’t looked at all the complaints closely, so I don’t know all the elements of the law that are being challenged. But I have thought a lot about the the mandatory purchase requirement, and I think that does do something that Congress has never done before. So whether they have constitutional authority to do so is an unanswered question.

    It seems a bit odd to say that Congress can take your money and in exchange give you insurance, but that it might not be able to require that you go out and buy it. But of course that’s the type of fine distinction that constitutional interpretation often relies on.

    And in the past twenty years the Court has struck down two or three cases as going beyond the scope of the Interstate Commerce Clause, and a number of those folks are still on the Court. That’s not a prediction about the outcome (I don’t have one, except that a 5-4 ruling wouldn’t cause me to raise my eyebrows), but just a reason for why supporters of the shouldn’t be too sanguine.

    As an aside, I should note that striking down the mandate wouldn’t mean striking down all of PPACA. The various elements of the law are severable. I would raise my eyebrows if the whole thing got struck down.

  3. AMW says:

    Yeah, but without the mandate the rest of it isn’t really sustainable. Adverse selection kicks in and things go completely to hell.

  4. James Hanley says:

    AMW, Oh I agree, but adverse selection isn’t a constitutional principle. Maybe it should be! Shall we propose Amendment 28? “Congress shall make no law which promotes adverse selection.”

  5. AMW says:

    How about, “Congress shall make no law which promotes asshattery.” That’ll shut ’em down almost entirely.

  6. “As an aside, I should note that striking down the mandate wouldn’t mean striking down all of PPACA. The various elements of the law are severable. I would raise my eyebrows if the whole thing got struck down.”

    Is that widely believed? My understanding is that the government has conceded non-severability, or at least it did in some of the early, district-level cases, when it came to the ban on pre-existing conditions, lifetime limits, and the premium price controls. I’m a bit out of my element here and I could be proven wrong by anyone who knows better, but that was my understanding.

  7. James K says:

    So what elaborate rationalisation do you think SCOTUS will come up with to declare it constitutional?

  8. Lance says:

    James K,

    So what elaborate rationalisation do you think SCOTUS will come up with to declare it constitutional?

    It needn’t be “elaborate”. If they proclaim it, it IS the law.

    The human eye has a little flaw. The nerves that represent the information transmitters of the retina come together in a bundle offset from the center of the field of view by about 20 degrees called the “fovea”. Anything image that falls onto this area is invisible to the brain. Interestingly the brain “fills in” the missing information as best it can and you never notice the “flaw” unless you perform a test to “find” the flaw. http://www.pilotfriend.com/aeromed/medical/fovea.htm

    I think the SCOTUS is the fovea of the US system of governance.

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

  9. jwk1101 says:

    It needn’t be “elaborate”. If they proclaim it, it IS the law.

    Sure, they could just say “we want it to be constitutional so it is, neener neener”, but in practice they tend to want to put some kind of fig leaf on it so they can maintain some plausible claim to not just authorising whatever the federal government wants to do. Thus you get the Wickard v Filburn and Gonzales v Raich style arguments where they say “no it’s totally interstate commerce, seriously”.

  10. Lance says:

    jwk1101,

    in practice they tend to want to put some kind of fig leaf on it so they can maintain some plausible claim to not just authorising whatever the federal government wants to do.

    True, and I also enjoy reading the dissenting opinions. They would be “the law” but for one or two votes in most cases.

  11. pierrecorneille says:

    James K:

    I think the fig leaf would need to be something like “it is necessary and proper” to use a mandate to regulate the insurance markets. That might be a stretch, but I think that it is not completely inconsistent with precedent, although finding the mandate constitutional might plausibly expand the scope of congress’s powers.

    In other words, I don’t think the justification for sustaining the ACA need be all that elaborate, save for the mandate provision. I think a strong argument can be made that health insurance and health provision, with which health insurance is intricately tied, are interstate commerce. At least they are more interstate commerce than was the agricultural “production” implicated in Wickard v. Filburn.

    I’m not saying it’s simple or that it’s a slam dunk “yes, the law is constitutional.” Just because something is not necessarily inconsistent with precedent does not mean that it will be accepted. And even if the court accepts something, that doesn’t mean that a good faith reading of the constitution (“good faith reading” is my shorthand for whatever mode of constitutional interpretation you think is good) compels or enables one to accept the mandate. (Also, I see other constitutional issues besides the mandate: the expansion of medicaid as an undue burden on the states might be one of them, and is in fact going to be litigated on the 3rd day of court hearings; another issue–to my knowledge it is not being litigated–is that the mandate might be considered a capitation tax and not a tax on income, and that might run afoul of the provision that states all taxes must be apportioned to state by population…..the apportionment requirement was modified by the income tax amendment, but I don’t know if it applied to all federal taxes, or just incomes.)

  12. James Hanley says:

    Pierre,

    I’m skeptical. The Necessary and Proper clause doesn’t get used that often. Just basing my bets on its frequency of use, with no reference to any arguments about interpretation or legitimacy, I’d wager they won’t fall back on that.

  13. jwk1101 says:

    Pierre, I think you’re right about interstate commerce, after all apparently everything is interstate commerce these days.

  14. pierrecorneille says:

    James,

    Oh, I agree. What I think I was trying to say is that using the “necessary and proper” argument is the only part of justifying the ACA that I would consider “elaborate.”

  15. pierrecorneille says:

    I’ll add that while I support the ACA, I’m somewhat doubtful as to whether 1. the Supreme Court will sustain it and 2. whether it’s constitutional.

  16. James K says:

    From my perspective the entire Wickard v Filburn decision is an elaborate rationalisation, so that was what I had in mind.

  17. pierrecorneille says:

    I can understand how someone would believe Wickard to be an elaborate rationalization, although that is not the way I see the case. I do think, at any rate, that health insurance is implicated in interstate commerce much more than whatever the farmer in Wickard. Of course, even if one concedes what I find pretty convincing–health insurance as interstate commerce–that concession doesn’t compel one to accept the mandate as constitutional.

  18. James Hanley says:

    From my perspective the entire Wickard v Filburn decision is an elaborate rationalisation

    Not just elaborate, rococo.

  19. pierrecorneille says:

    I don’t see how it’s all that elaborate. Filburn was growing wheat to feed his livestock, which would presumably be sold in the stream of interstate commerce. (My citation for the claim is http://volokh.com/2011/10/16/farmer-filburns-wheat/)

    My reading of the case–admittedly several years ago, and it was edited to fit into a casebook–was not that the Court completely eviscerated the commerce/production distinction, but that it narrowed this distinction.

    Although I’m not a lawyer or a legal scholar, I’m not even convinced that the case was all that contradictory of precedent. At least some people (Charles McCurdy and Hans Thorelli, if I recall correctly) have claimed that even E. C. Knight, which elucidated the commerce/production distinction that according to my casebook (Ducat et al., c. 1994) Wickard v. Filburn supposedly overturned, might have been decided differently if Attorney General Olney had actually cared about securing a conviction.

    I know too little about either case, and I acknowledge that McCurdy and Thorelli might be wrong, to speak with much authority. I also acknowledge that my link comes from Jonathan Adler at the Volokh conspiracy, and he in other posts reiterates his belief that the decision is wrong, if I remember correctly. I’ll even acknowledge the view that there must be some line-drawing and that that line ought to be drawn in a way more respectful of the production/commerce distinction, even if I ultimately don’t share that view.

    But I just don’t see the rationalization as all that elaborate. I also think that health insurance and health care provision, as it is practiced today, enters into interstate commerce in a more obvious way than Mr. Filburn’s wheat did (with due acknowledgment that federal law currently prohibits people from buying insurance across state lines, a fact that can be read to support my claim inasmuch as if one concedes that federal law may ban the sale, its jurisdiction runs at least as far as regulating that trade).

    Of course, I find it difficult to deny the claim that authorizing the mandate might involve an elaborate rationalization inasmuch as it might be seen as regulating “inactivity.”

  20. pierrecorneille says:

    I’ll even acknowledge the view that there must be some line-drawing and that that line ought to be drawn in a way more respectful of the production/commerce distinction, even if I ultimately don’t share that view

    Err….I mean, I don’t share the view that the line ought to be drawn in that way. I do believe that there ought to be some line-drawing.

  21. James Hanley says:

    Honestly, I think the effect of the decision is to eviscerate lines by making it impossible to distinguish between intra-state and interstate commerce. Perhaps in the real world where most lines drawn are somewhat artificial this distinction is somewhat weak as an economic matter, but clearly the Founders were attempting to make some distinctions at a pragmatic level about what was the federal government’s business and what was not, and that distinction got completely wiped out by the case. The argument of the case extends easily to me engaging in interstate commerce if I cut down trees on my property to build a house there, because by not buying any of the lumber I need, I have an affect on interstate commerce.

  22. pierrecorneille says:

    James,

    I guess you and I see the implications a bit differently. I do recognize that Wickard makes it a lot easier than not to have a decision like Raich v. Gonzales, or like one sustaining a law that would punish you for cutting trees down on your property. I see those laws as different almost in kind from the 2d AAA, but I’ll grant you the effect the Wickard decision might have had in validating them. But I still think the Wickard decision is more or less a sound distinction that could be–and according to many people, has been–interpreted over-broadly, even then with fits and starts, and the occasional check (e.g., Lopez) on the scope of what counts as commerce.

    Also, I have one retraction and one clarification to my above comment at 11:15, and they both make my case weaker:

    Retraction: I think I misrepresented McCurdy’s argument. He wrote about the state’s rights reasoning of the court in E. C. Knight, and to my knowledge did not make the claim about what would have happened if Olney had acted differently.

    Clarification: I realize that other, more recent precedents, were probably more pressing than the Knight decision when Wickard was decided, such as the decisions that invalidated the first AAA and the Carter v. Carter Coal Company. (Schechter doesn’t count because if I recall correctly, the NIRA was overturned on grounds that it violated separation of powers, with the president’s code making authority arrogating the legislature’s authority….I stand to be corrected at any rate.)

  23. pierrecorneille says:

    One more point and then I’ll be quiet (for a while):

    I realize the stance I am endorsing comes with its dangers, and I also realize that I haven’t really grappled with them–either on my own or in this thread. One possible (and so far attested) outcome of the stance I endorse is a federal government with de facto plenary power, with a few exceptions carved against that power: in other words, the danger is standing the constitutional guarantees against overreaching government on their head. I don’t like the Raich decision any more than you do, and although I think it goes against what I take away from Wickard, I would be a fool to deny that Wickard and its progeny did not play a key role in enabling it.

  24. Lance says:

    Sadly the counting of angels dancing on the head of a pin has been employed to allow the SCOTUS to make pretty much anything constitutional.

    Want to inter American citizens in camps based on their ethnicity?

    Totally constitutional. (Korematsu v. United States)

    Want to justify slavery of people of certain “races”?

    No problem. (Dred Scott v. Sandford)

    Want to suspend habeas corpus?

    Done twice, once by Lincoln and then by G.W. Bush. (Still in effect)

    Cool. (Ex parte Merryman (1861)) (Boumediene v. Bush)

    Makes our “checks and balances” seem like a complicated con game to keep junior down on the farm.

    I’m not saying there is a better system but I think we can say there is a loose thread on the sweater of our constitutional republic.

  25. Troublesome Frog says:

    James Hanley:

    It seems a bit odd to say that Congress can take your money and in exchange give you insurance, but that it might not be able to require that you go out and buy it. But of course that’s the type of fine distinction that constitutional interpretation often relies on.

    Part of me wants to shrug and agree, but a bigger part of me wants to cry. We created a Supreme Court to be part of the government and we created a government to handle the practical matters of keeping the underpinnings of society working. Philosophical wanking about questions like, “Is you giving me a dollar and me giving it back exactly the same as you keeping your dollar?” is fun, but it has basically zero effect on the real policy world. I don’t think that we should be thrilled at the notion that the only independent branch of our government is expected to spend all its time on the wanking and punt in the practical questions.

    Example of a practical question: Your taxes go up slightly if you opt not to carry health insurance. This is a “mandate” to have health insurance and apparently it’s something that the world has never seen before. I pay massively higher taxes because I don’t have a mortgage or children. Is this a mandate for me to have a mortgage and children? I never took it as such, but perhaps I should. I’d love to see the mortgage interest rate deduction struck down and the paper it’s written on shot into the sun.

  26. James Hanley says:

    I’d love to see the mortgage interest rate deduction struck down

    You mean after I’ve paid off my mortgage, right? ;)

    As to the issue of defining how many angels can dance on the head of a pin, I understand the frustration, but I’d add two caveats. One, this particular bizarre turn of constitutional analysis is really just the consequence of previous dubious interpretations that expanded the scope of the commerce clause. Absent that very dubious interpretation, we wouldn’t be facing this paradox today. Second, as much as it does at times seem like we’re just wanking, the only way we can actually avoid that wanking is to base all our constitutional interpretations on political evaluations of each policy’s wisdom, and to eliminate the actual concept of formal limits on government’s power. The fact of having formal limits means we will inevitably end up playing ecclesiastical scholar. The only comfort is that it’s actually a rather rare problem–most Supreme Court cases aren’t of such a fine print nature, and the vast majority of duly enacted policies never require any such legal scrutiny at all. So the rare and uncomfortable cases are the noticeable ones–but they’re still pretty rare.

  27. Lance says:

    James Hanley,

    Second, as much as it does at times seem like we’re just wanking, the only way we can actually avoid that wanking is to base all our constitutional interpretations on political evaluations of each policy’s wisdom, and to eliminate the actual concept of formal limits on government’s power. The fact of having formal limits means we will inevitably end up playing ecclesiastical scholar.

    My issue with the way the SCOTUS usually operates is that they don’t see themselves as the final check on limiting government power but as an extension of the government’s power.

    For all practical purposes they appear to be justifying whatever political viewpoint they hold rather than attempting to be a restraint on government power.

    I would be cool with a little ecclesiastical navel gazing if it was done in the name of preserving fundamental individual rights.

  28. Troublesome Frog says:

    James Hanley:

    The fact of having formal limits means we will inevitably end up playing ecclesiastical scholar.

    That’s unavoidably true, but I’d argue that this isn’t really one of those cases. A useful debate about the limits of government power would ask questions like, “Can the government charge different tax rates to reward or punish the purchase of goods?” or, “Given that the government can do so, are there limits to the goods it can reward or punish you for buying or limits on the size of the punishment?”

    But we’ve already apparently had those debates and settled them. The tax code is overflowing with examples. The question at hand here appears to be pure angels on the head of a pin. Striking it down seems more like saying, “Yes, we decided years ago that you could to exactly this sort of thing, but this one was written with blue ink and not stapled with a red Swingline, so we have to make an exception.” Given that we’re talking about a policy that has life and death consequences and affects 17% of our GDP, it seems like we would be deciding it based weightier issues.

    I’m not necessarily saying that I believe that the act is or is not constitutional. However, I am suggesting that one needs to construct a pretty fragile philosophical framework to say that all of our other preferential taxes on commercial behavior are OK while this one is not. It’s even harder to construct such a framework while not making it look like it was simply a projection of the Court’s policy preferences. Which is something that I would never imply was happening. Never.

  29. Lance says:

    Troblesome Frog,

    Name another product or service that the federal government mandates that a person purchase.

    Let’s see, auto airbags? Nope, nobody is making you buy a car.

    There’s the auto insurance argument, leaving aside that it is mandated by state governments for the moment. Nope, you only have to buy auto insurance (or in some states post a large bond to cover any damages you may inflict on another person) if you drive a car.

    Maybe you can think of one?

    I don’t think this case is one of semantics but as Justice Kennedy said,

    Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.

    This aint no small potatoes.

  30. Troublesome Frog says:

    Lance:

    Name another product or service that the federal government mandates that a person purchase.

    Given the definition of “mandates” we’re using here? Absolutely ANYTHING that is tax privileged to the tune of more than few hundred bucks.

    By that definition , I must have a mortgage. I must buy an electric car. The government charges me higher taxes if I don’t do those things. Thus, I am compelled to action by an unjust financial penalty. The tyranny!

    Kennedy seems to assume that there is some sort of Morally Correct natural state of being in which your taxes are X when you don’t do anything. The reality is that every decision we make to do or not do something affects our tax burden one way or another. This is only special in some vague philosophical sense that creates an important distinction between adding a negative and subtracting a positive or a difference between tax expenditures and government transfers.

  31. James Hanley says:

    As odd as it is, there still is a difference between saying “we will increase your taxes from the baseline if you do not do X,” and saying “we will decrease your taxes from the baseline if you do X.”

    If we don’t agree to that, then rewards = punishments.

    And if we say that tax disincentives never rise to the level of illegitimate coercion, then again we have no actual constraints on government.

  32. James Hanley says:

    Oh, and is it really legitimate to use the “it’s life or death” argument here? We’re talking about punishing people for not buying insurance…if they can afford it and haven’t bought it, then it seems to me they’ve decided that the life or death issue isn’t particularly relevant.

    I’ll buy the collective action problem/adverse selection argument as being a serious one that can’t be dismissed by critics of PPACA, but I don’t think the life or death argument bears on the mandate issue.

  33. Lance says:

    C’mon troublesome frog, giving some people tax breaks for certain things is hardly the same as the government telling everybody they have to buy something or else. You’ll have to do better than that.

    The military draft is the only real analog to the current situation and I’ll be damned if I think it is constitutional either. The draft is slavery, period.

    I’m not a big fan of slippery slope arguments but…

    If the government can make you buy health insurance what exactly can’t they make you do? Are there no constitutional protections from complete servitude if the congress decides to make you do something?

    Forget friggin broccoli, why not force you to buy an electric car to “save the planet”.

    Is that OK? Currently there is an $7,500 tax break on the infernal things. According to a certain irritating amphibian that’s really the same thing as slapping me with an $8,000 tax penalty if I don’t buy one of the damn contraptions.

    So congress should be able to “mandate” purchase of electric cars and if I don’t hustle down to Carmel Nissan and drive off in a shiny new CO2 free Leaf the IRS should be able to place a tax lean on the old castle if I fail to pony up the scratch.

    Same thing right?

    Puh Leeze!

  34. Lance says:

    Oops, checked and found the tax incentive is $7,500 not $8,000 (as I had rounded from memory) and only changed it in one of the two places.

    But you get the point.

  35. Troublesome Frog says:

    James Hanley:

    As odd as it is, there still is a difference between saying “we will increase your taxes from the baseline if you do not do X,” and saying “we will decrease your taxes from the baseline if you do X.”

    Normally, yes. But if it’s a tax it’s different. If we lower taxes on Paul, there’s certainly a Peter somewhere who will pay more. Let’s say the mortgage tax deduction didn’t exist and we instituted it today. All else held equal, my taxes would surely go up unless I ran out and got myself a mortgage. Would it be a mandate then? Could I take that to court?

    James Hanley:

    And if we say that tax disincentives never rise to the level of illegitimate coercion, then again we have no actual constraints on government.

    I would certainly never say that. A billion dollar tax on cigarettes is a ban on cigarettes. But that slippery slope doesn’t really illuminate much.

    Lance:

    C’mon troublesome frog, giving some people tax breaks for certain things is hardly the same as the government telling everybody they have to buy something or else.

    Even if the “or else” is “Your tax bill will change”?

    Lance:

    Is that OK? Currently there is an $7,500 tax break on the infernal things. According to a certain irritating amphibian that’s really the same thing as slapping me with an $8,000 tax penalty if I don’t buy one of the damn contraptions.

    Not necessarily $8000. If half of all tax payers pay $8K less, the other half will pay $8K more. Not so many electric car buyers out there, so your tax hike was smaller. Probably so small as to be below the $1 quantum. But I guarantee you that ain’t true for the mortgage tax break.

    Lance:

    If the government can make you buy health insurance what exactly can’t they make you do? Are there no constitutional protections from complete servitude if the congress decides to make you do something?

    Surely you don’t believe that the Constitution forbids Congress from making a law that makes a citizen “do something.” Is that really the test you want to apply?

    I don’t get why people look for a constitutional limit to every power. When somebody asks, “If they have the power to do X, why not the power to do Y?” they’re implying that there must be a constitutional limit on X. There’s no reason for that to be true.

    Let’s try this: If Congress can tax a dollar of my income, what constitutional limit is there on them taxing all of it, or double all of it? Congress can borrow, so where is the provision that prevents them from borrowing infinite money? Congress can declare war, so where’s the provision that prevents them from declaring Ultra War against every nation in the world? The right answer is that no such limit exists. The limitation is enforced the electorate and not the Constitution.

  36. Troublesome Frog says:

    Let’s try this: If Congress raised taxes across the board by 1% and then offered a tax credit for people who bought insurance, would it change from unconstitutional tyranny to business as usual? If so, this is precisely what I refer to as philosophical wanking. It’s the same policy, even if it’s wearing a silly hat and Groucho Marx glasses.

  37. pierrecorneille says:

    Troublesome frog:

    Although I do think the mandate is formally different from the tax credit you describe at 10:31, I do sympathize with the point you’re making, and if I do take the side of supporting the ACA, I do so probably along the lines you’re talking about here and in a few of your other comments.

  38. pierrecorneille says:

    Remember when I said “I don’t see how it’s all that elaborate. Filburn was growing wheat to feed his livestock, which would presumably be sold in the stream of interstate commerce”? Well, I have to eat some crow. I just re-read (i.e., I just skimmed) the case, and found this statement in the headnotes, repeated in the decision:

    “That an individual’s contribution to the demand for goods moving in interstate commerce may be trivial by itself is not enough to remove him from the scope of Federal regulation where his contribution taken together with that of many others similarly situated, is far from trivial.”

    I was wrong. This rationalization would have applied to someone just growing wheat for their own consumption and not, as I claimed earlier, only to someone growing wheat to feed livestock meant to be sold in the stream of interstate commerce.

    I still suggest that the provision of health care and health insurance is part of interstate commerce in a much more obvious way than the product of a farmer who consumes wheat on his or her own property. In other words, I still believe that it is interstate commerce under pre-Filburn as well as post-Filburn precedent. I keep to my prior admission, however, that the interstate nature of health insurance does not necessarily mean that an individual mandate is a proper way to regulate health insurance.

  39. Lance says:

    Troublesome Frog,

    I see your point, but as James Hanley said reward is not the same thing as punishment. Also, raising everyone’s taxes expressly to lower it for people that do what you want would be the exact same thing and thus would be so transparent as to invoke the SCOTUS to act as it has in this case.

    Tax incentives are independent of tax levies and thus tax breaks are positive reinforcement and act to lessen the burden of citizens due to government action rather than increase it.

    Also much of this discussion would be moot if income taxes were still unconstitutional.

    I say repeal the sixteenth amendment!

  40. Lance says:

    Oh, how I wish there was a preview feature here at the BHP (are you listening Mr.Hanley?)

    [I’ve looked, and haven’t found that capability. I’d offer it if I could find it. JH]

  41. James Hanley says:

    T-Frog,

    What is the difference between a tax and a fine?

    I don’t ask that snarkily. The real world differences among these things is very fine, and I can’t even pull the old pornography line and say I know it when I see it. And yet if we can’t make such distinctions, then aren’t we ultimately saying that the fine for speeding is actually just a tax on driving fast?

    I mean, there is that line of argument out there, particularly in the econ literature. That’s why I’m troubled by all this–there is no simple rebuttal of your point, and I recognize that fully. But if we take that approach here, where does it lead us?

    If Congress raised taxes across the board by 1% and then offered a tax credit for people who bought insurance, would it change from unconstitutional tyranny to business as usual?
    Yes, from a legal perspective. And, yes, it is philosophical wanking of a sort. But I think that at these margins we can’t always avoid that sort of wanking, or that if we try to avoid drawing the fine lines here, where do you propose we draw them? Because I think fine lines must be drawn somewhere, so where else do you propose to draw them that A) isn’t just as subject to a claim of philosophical wanking, and B) doesn’t fairly obviously open up the path to much further extensions of government power into our activities?

  42. Troublesome Frog says:

    Lance:

    Reward is only independent of punishment if we’re not in a zero sum game. Taxation to meet a budget is definitely zero sum. Reward must equal punishment by accounting identity. “Jimmy, give Bobby your cookie because Bobby has been good,” is not just a reward for Bobby.

    This interests me primarily because tax expenditures are a major pet peeve of mine. They’re a backdoor way of funding social programs by “lowering taxes” and most of the electorate buys into it.

    As liberals go, I’m a fairly strange bird. I think that the income tax and the estate tax are good policy, but I’m all for dumping the corporate income tax and basically all of the deductions that distort our behavior. If you want to give somebody more money to go to college, you should explicitly raise taxes, put it on the budget and send them a check. Don’t “cut taxes” for them and pretend like you’re not still taking the money out of our pockets elsewhere.

    James Hanley:

    What is the difference between a tax and a fine?

    I have been mulling that one over myself, and it’s definitely not clear. I’d say that the PPACA disincentive is a tax as it’s added to your tax bill and paid to the IRS. But it could certainly be structured differently. We certainly see cities who build parking fines into their budget as a major source of revenue, leading to perverse laws like making it illegal to feed somebody else’s meter. I read a while back that San Francisco tried to save money by not sweeping the streets so often until they realized that the fines they got from extra towing actually more than covered the cost of sweeping.

    But I think that at these margins we can’t always avoid that sort of wanking, or that if we try to avoid drawing the fine lines here, where do you propose we draw them?

    I think that the time for the Supreme Court to act would have been a long time ago, basically saying that Congress can’t use the tax code to alter behavior if they couldn’t also use the criminal code to do so. As you pointed out earlier, that horse left the barn long ago and now we’re stuck with wacky precedent to reconcile. Whatever unconstitutional looking policy you want enacted, you can probably come up with a way to phrase it so it looks like a “tax incentive” that lives within precedent.

    Even if they rule against PPACA, they won’t really be saying, “Congress can’t do this.” They’ll be saying, “Congress can do this, but only if they aren’t obvious about it.” That’s a sad state of affairs.

  43. Michael Heath says:

    James Hanley asks:

    Oh, and is it really legitimate to use the “it’s life or death” argument here?

    That seems self-evidently yes to me. I’m surprised any reasonable well-informed person, which I regard you to be on this issue, would argue otherwise. People suffer more, die earlier, or outright die in this country due to a lack of feasibly accessible, preventative, timely, health care. It happens on a daily basis all over the country, and probably even in the smallest of towns on a daily basis.

    I work in an industry filled with professionals who can’t afford health insurance, Real Estate. That’s because Agents are predominately self-employed, older though predominately not old enough to qualify for Medicare, and make enough to not qualify for gov’t help but don’t make enough to secure incredibly poor coverage at incredibly outrageous rates. That’s because these plans either have no young people to spread the costs, nearly all these insurers’ clients have a high chance of needing healthcare, or have an employer who cares enough about an individual to have any influence over the health insurance company they select as their company’s provider. All the power in this type of individual consumer-supplier relationship is enjoyed by the supplier. And getting into a group plan also fails because again, there is no benevolent employer with leverage to fire an insurance company who screws one or a few of their employees.

    We’ve known since at least the 1980s that the healthcare finance market is a failed market. I found out then since it was an example in at least one of my college econ classes. Economists even back then were confident this failed market would only get far worse given certain factors known even back then – e.g., aging demographic, and a structurally weak and declining labor market given the rise of a competitive global market.

  44. James Hanley says:

    T-Frog,

    But the only people really being mandated are the ones who actually can afford it, so for them it’s not a life or death issue.

    The ones for whom it is a life or death issue are the ones who can’t afford it, and rather than truly being mandated to buy it, they’re having it subsidized for them.

    That’s why I ask whether the mandate per se is properly discussed in the life and death terms.

  45. Michael Heath says:

    James writes:

    the only people really being mandated are the ones who actually can afford it, so for them it’s not a life or death issue. The ones for whom it is a life or death issue are the ones who can’t afford it, and rather than truly being mandated to buy it, they’re having it subsidized for them. That’s why I ask whether the mandate per se is properly discussed in the life and death terms.

    Again, not true. There are people who can’t afford insurance who also can’t get Medicaid. The only way we make insurance affordable for them to spread the cost via the mandate, or do a universal single-payer plan. I know many people who fit this bill. This is a life and death issue.

  46. Troublesome Frog says:

    That’s why I ask whether the mandate per se is properly discussed in the life and death terms.

    That was Michael Heath’s response, but I think it’s fair. Mind you, I’m not trying to throw out an emotional, “Won’t somebody think of the children??” here, but it’s worth remembering how important this piece of legislation is. It’s the difference between medical coverage and no medical coverage for a lot of people.

    The long and the short of it is that killing the mandate kills the whole thing. No mandate means pre-existing condition coverage doesn’t work and the whole thing falls apart. So yes, the mandate alone isn’t saving any lives, but neither are the bolts on the airplane cabin door. It’s the the stuff that inevitably happens after you lose them that matters, and that’s no small thing.

  47. James Hanley says:

    Wait a minute, you’re saying that people who can’t afford insurance are now going to be required to buy what they can’t afford….without getting the government subsidy?

    And you say that like it’s a good thing? You’ve both lost me.

  48. Michael Heath says:

    James Hanley writes:

    you’re saying that people who can’t afford insurance are now going to be required to buy what they can’t afford….without getting the government subsidy?
    And you say that like it’s a good thing? You’ve both lost me.

    You appear to not know that Obamacare expands Medicaid and CHIP coverage by raising the ceiling on who is eligible [1]; 93% of which is funded by the government and the other 7% by the states; which increases their outlay for these programs by just under 3% [2]. Couple that to the math of the mandate, the federal government calculates that those still not eligible for Medicaid who require coverage will be able to afford it, partly through a progressive federal subsidy scale which is not available now to about 30 million uninsured people. [Cite upon request, not sure what your link limit is here where I consume two below.]

    You haven’t studied this policy prior to critiquing it have you?

    1] Under the PPACA, Medicaid is set to expand its eligibility for coverage to include persons with income levels at or below 133 percent of the federal poverty level. In 2014, a standard 5 percent income disregard will apply to most individuals, effectively increasing the eligibility level to 138 percent of the poverty level. Best estimates place the increase in additional enrollees at 16 million to 18 million. [Some 30+ million are uninsured.] Cite: http://www.healthcarereformmagazine.com/article/health-reform-and-medicaid-expansion.html
    2] http://goo.gl/KSD8p

  49. James Hanley says:

    Somehow we’re talking past each other. I was critiquing the life or death language used by T-Frog. Let’s hold that off for just a moment while I make clear the starting point from which I’m working:

    There are two groups of people who currently aren’t buying insurance.
    A) Those who can afford it, but choose not to buy it.
    B) Those who can’t afford it.

    Those two groups are functionally different, so they have to be analyzed differently, no? And statements that apply to A don’t necessarily apply to B, and vice versa. No?

  50. Michael Heath says:

    James Hanley writes:

    Somehow we’re talking past each other. I was critiquing the life or death language used by T-Frog.

    From my perspective we’re not talking past one another. T-Frog is correct this is a life and death issue, I know this to be true because many of my peers in the Real Estate industry suffer through this given their age and lack of employer-funded health insurance, which I pointed out in my post above. Access to sufficient preventative care, including tests, along with access to care to largely reduce the probability of a known condition becoming far worse is not available to millions of Americans who would be covered under expanded Medicaid under Obamacare or subsidies via the Obamacare universal mandate.

    James Hanley writes:

    There are two groups of people who currently aren’t buying insurance.
    A) Those who can afford it, but choose not to buy it.
    B) Those who can’t afford it.

    Those two groups are functionally different, so they have to be analyzed differently, no? And statements that apply to A don’t necessarily apply to B, and vice versa. No?

    I think this reveals how you don’t understand this market at all. Your ‘A’ and ‘B’ vastly oversimplifies the reality that millions of Americans face. The reality is many people don’t even know if their coverage is sufficient to cover them when diagnosed, many people can’t afford to discover a diagnosis, and many people have insurance who won’t sufficiently cover them upon a diagnosis, all while not being currently eligible for Medicaid. They either wrongly think they’re in your group ‘A’ while finding out too late they’re in your group ‘B’ because their coverage was worse than they thought, or they have coverage which doesn’t allow them sufficient care to eradicate the risk of death or becoming incapacitated.

    For example, I’ve spent $8000/yr. for mere catastrophic health insurance; last year when I submitted a claim which totaled $8000, it didn’t cover anything in spite of the fact this treatment was required to both eradicate the risk of my immediately dying and eradicate the chance of major organ damage of the brain, heart, and lungs. My diagnosis was also late because I had no coverage for timely tests and therefore went undiagnosed for eight years. So in 2011 I ended up paying close to $16,000 that year for insurance and treating this condition. How many self-employed people can afford that; where this treatment is relative trivial to far more expense treatments for other illnesses?

    I personally know many people, many, not a mere few, who can not afford life-saving care, including timely preventative care, or treatments to eradicate the threat of death, while also not currently qualifying for Medicaid because they make too much money, but not enough to either have sufficient coverage or pay for treatment out-of-pocket. I know of two people who recently died from a treatable illness (both were unrelated but had the same illness) because that person didn’t qualify for Medicaid and couldn’t afford the type of preventative care that would have discovered this illness early enough.

    This situation is growing worse as less our population ages and yet many of us are too young for Medicare, employer-funded insurance declines in the number covered, and unemployment among those in their late-forties,fifties, and early-sixties prevents them access to: employer-funded full coverage, full coverage they pay for, and the ability to pay for preventative/catastrophic and out-of-pocket care not covered by their skeleton plan, or where they work in self-employed jobs which gives them enough income to prevent them from qualifying for Medicaid.

  51. James Hanley says:

    Oh, for fuck’s sake, Michael. You’re still missing my point, and if you’re going to say that we can’t begin a discussion by making some simplifying assumptions, then you’re just bound and determined to put your fingers in your ears, yell,”nyah nyah, I can’t hear you,” and not actually engage in discussion. I’m tired of your repeated arrogance in assuming that anyone who disagrees with you must not know anything.

    I’m not particularly in a mood to be gracious about that arrogance, so just piss off.

  52. Troublesome Frog says:

    James Hanley:

    There are two groups of people who currently aren’t buying insurance.
    A) Those who can afford it, but choose not to buy it.
    B) Those who can’t afford it.

    I think we should add a very important class C: People with preexisting conditions that prevent insurers from taking them on at any price. I suppose that they could fall into B if you assume a price range of 0 to infinity, but they’re different for an important reason: Their problems are fixed not by a subsidy but by the individual mandate combined with the elimination of preexisting condition rules.

    Ignoring the ins and outs of the insurance exchanges, the act has three major high points. The first is the elimination of the preexisting conditions clauses that affect class C. To fix the moral hazard problem that comes from that, we add in the mandate. To deal with people in group B who can’t afford to comply with the mandate, we add a subsidy. All three are necessary if you want the first, so I’m saying that everything that makes insurance available for people in class B and C goes down the toilet if you ax the mandate. Those people (especially class C who already have serious health issues) have a lot of skin in the game.

  53. Michael Heath says:

    James Hanley writes:

    Oh, for fuck’s sake, Michael. You’re still missing my point

    I get your point perfectly.

    James Hanley writes:

    “. . . you’re just bound and determined to put your fingers in your ears, yell,”nyah nyah, I can’t hear you,”

    I would argue that explains your responses, not mine. I did my best to directly respond to the elements of your argument which I observe are defective to the point it neither explains the current reality or the model under Obamacare – and therefore hinders a productive dialogue. I even brought some citations to bear to point out your premises weren’t accurate or sufficient to have the quality argument you want to have.

    James Hanley writes:

    I’m tired of your repeated arrogance in assuming that anyone who disagrees with you must not know anything.

    Actually you’re the only person I regularly engage with who I find suffers from this affliction, and then on only two matters, climate change and here on this topic. I do so because I care about you and want what’s best for you. I also think you have some aptitude to make better arguments. E.g. on my observation you’re not sufficiently informed:
    In this post you’re making an argument as if Medicaid wasn’t expanded under Obamacare or that those who, “can currently afford health care” [paraphrase] currently can’t afford coverage to the point it’s no longer, in your words, “a matter of life and death”, but will:
    a) get progressive subsidizes under Obamacare,
    b) given a universal mandate and some other reform language to put lessen increased price pressure and,
    c) won’t be as discriminated by their age when it comes to their premiums as they are now (again given Obamacare reform language). Those assumptions directly refute your argument life and death matters aren’t at stake for the millions of people who currently don’t have insurance and don’t qualify for Medicaid.

    James Hanley writes:

    I’m not particularly in a mood to be gracious about that arrogance, so just piss off.

    Will do though I do think my apparent arrogance is a sliver in my eye vs. the current board in your own – if the premise is to have a productive debate on this issue by at least framing the premises correctly. But it’s your venue so I’ll sign off.

  54. James Hanley says:

    Michael,

    I’m not being arrogant, because unlike you I’m not trying to make an absolute claim. I simply posed a question, and tried to make a distinction between cases, in order to get at further understanding. Meanwhile, you’ve gone into full lecture mode.

    In this post you’re making an argument as if Medicaid wasn’t expanded under Obamacare
    Actually, I was assuming precisely that expansion in my original. response to T-Frog’s “life and death” claim. That’s what “they’re having it subsidized for them” meant. That’s part of what’s irritating me–you’re lecturing me on what I’m doing wrong, when I wasn’t doing that thing at all.

    FYI, I was within a whisker of just deleting your comment. I had deleted the text, substituted “Comment deleted,” and had the mouse hovering over the submit button. I decided to refrain from being quite that much of an ass, but next time I might not. If you quit lecturing and start discussing, I’ll reciprocate by being nice. But if you’re going to continue your “you haven’t done your research” criticism on the basis of failing to read what I write, then you’ll be gone.

    It’s my blog–if you want to play smug know-it-all rather than actually have a thoughtful discussion, you’re not welcome.

  55. James Hanley says:

    T-Frog,

    Good addition with class C. Thank your for working within the structure I’m trying to use for analysis, and expanding it properly.

    So my question is, for which of those groups is this properly called a life or death issue? (Obviously this isn’t a question about the overall justification or design quality of PPACA; I’m just working on the question of whether using the life or death terminology is appropriate or an unwarranted appeal to emotion–and I want to emphasize that I am approaching this as a question to be resolved, rather than a claim I’m rigidly insisting on.)

    For Group A (can afford, but choose not to), I don’t see a mandate as appropriately being called life or death. They’ve made a free choice.

    For Group B, (can’t afford it, but want it), making insurance available is fairly called a life or death issue, but since they can’t afford it on their own, I don’t see a mandate as properly being called a life or death issue–absent subsidization the mandate is useless, so how could it specifically be a life or death issue?

    For Group C, (can afford it, want it, but can’t get it), the mandate also isn’t itself the life or death issue because, again, by itself it is useless–it needs an additional rule to make it functional.

    Now for Groups B and C, I can certainly see claiming that making access to health insurance available is a life or death issue. That seems eminently fair. But in neither case can the mandate operating by itself make that access available, and in each case some other rule operating by itself could make that access available. So I’m not seeing how the mandate can be a matter of life or death.

    Again, this particular strain of argument is not about the legitimacy or desirability of PPACA or any other health care proposal. It’s simply directed to the issue of whether “matter of life and death” is appropriately applied to the mandate. That is, it’s really a rather small issue, not at all what Michael Heath was trying to make it out to be. And I sincerely do appreciate that you were willing to work with the analytical structure I was setting out.

  56. Troublesome Frog says:

    James Hanley:

    My point is simply this: There’s no separating it from the rest of the act. The consequences of removing it are the same as the consequences of complete repeal. The whole thing will fall apart, so trying to separate out the first chain in the chain of events is really trying to ignore causality when assigning blame.

    As they say, it’s not the fall that kills you, it’s the sudden stop at the end. That’s not a good argument that pushing somebody off a building isn’t really a problem.

  57. Michael Heath says:

    James writes:

    For Group B, (can’t afford it, but want it), making insurance available is fairly called a life or death issue, but since they can’t afford it on their own, I don’t see a mandate as properly being called a life or death issue–absent subsidization the mandate is useless, so how could it specifically be a life or death issue?

    T-Frog’s point is important. The mandate coupled to some other reform language transforms the healthcare finance market from one that covers less people who suffer more and die earlier to one where more people live and suffer less. The mandate does come with a subsidy and Obamacare comes with a law which prohibits a limit of coverage for a certain condition. The mandate spreads the extra cost of not limiting coverage by providing insurers with a relatively healthy set of consumer customers who are far less likely to hit such limits, younger workers. As T-Frog has repeatedly noted, and me, you can’t separate the mandate from other aspects of Obamacare since the prohibition in limiting coverage and other Obamacare reform language would price coverage beyond what people who don’t qualify for Medicaid can afford.

    Lastly, your ‘life and death’ framework must include those who currently have non-comprehensive “catastrophic” coverage whose coverage isn’t sufficient for them to avoid life and death. Far too often these consumers, who are mostly middle-aged self-employed people, only realize there coverage was more of a con when it’s too late and they can’t secure sufficient coverage, nor can they afford comprehensive coverage, or the preventative care needed to address illnesses when they’re treatable. For them they’re paying money for coverage which they think will allow them to avoid death when in fact it won’t; where it’s not feasible for many of them to know this in advance.

    The mandate coupled to other pieces of reform language is not only a life and death issue, but one which effects millions of Americans, including many I know personally here in my hometown.

  58. James Hanley says:

    My point is simply this: There’s no separating it from the rest of the act. The consequences of removing it are the same as the consequences of complete repeal.

    So that it will have that affect on the particular group? Fair enough. But the fact that it exists and would provide that particular benefit for that particular group does not, in my mind, either make it constitutionally legitimate (it may be, but for different reasons) or even a particularly good policy approach. At best it’s a kludge, no?

  59. Michael Heath says:

    James writes:

    the fact that it exists and would provide that particular benefit for that particular group does not, in my mind, either make it constitutionally legitimate (it may be, but for different reasons) or even a particularly good policy approach. At best it’s a kludge, no?

    You are correct that just because the primary feasible factor to this policy prescription is the universal mandate doesn’t make it constitutional. However I haven’t encountered any constitutional arguments from this premise.

    I think it’s a kludge only if one is arguing for a single-payer plan that’s presented with a compelling argument it’s a more cost-effective model with better predicted results. The basic objective of Obamacare is to maintain a private insurance industry where I think it’s not only a kludge, but the only feasible approach I’ve encountered for the U.S. given our current state. Especially when you consider our changing demographics and with the declining trend for employers to fund comprehensive care. A decline that helps them become more competitive in the global marketplace.

    Howard Dean and Think Progress wrote a good, not great, policy book on financing healthcare [1]. One compelling argument they made is their benchmarking other countries’ transformation to what they currently have now which delivers better results for less than cost than the U.S. They found that success was not the result of a particular optimal scheme – like socializing all of healthcare or the financing of it, but instead adapting one’s current scheme to one that directly addresses the failed elements of the current market. In our’s that’s obvious, healthcare providers have enormous pricing leverage over consumers of healthcare and those financing it (Medicare actually performs better than the private sector at keeping costs down), and we have older though not yet retired people consuming more healthcare than they can afford while younger, healthier workers aren’t paying premiums at an increasing rate to subsidize those workers [2]. I was surprised to find Think Progress promoting what I found to be a classically Burkean response though that’s consistent with the Obama presidency where he normally argues policy from a Burkean perspective.

    1] This is my review of that book: http://goo.gl/vN7hX . It wasn’t great because I would have preferred to see a more quantitative analysis done. They should have had a healthcare economist join in on writing this book. Dean was great on the policy and perspective as gov. of Vermont, but the book lacked quantitative rigor in terms for running some models considering the U.S. context.
    2.] In fact we’re encountering relatively fewer younger workers getting any health insurance while the older though not retired are also encountering decreased participation in employer plans.

  60. Troublesome Frog says:

    James Hanley:

    But the fact that it exists and would provide that particular benefit for that particular group does not, in my mind, either make it constitutionally legitimate (it may be, but for different reasons) or even a particularly good policy approach.

    I’m certainly not arguing that it makes it more or less constitutionally legitimate. My position is more that there’s a difference between throwing something out over legitimate limitations on federal power and throwing something out over what amounts to wording. I’d rather see wrangling over a detail with no practical importance hashed out using an issue with fewer real-world consequences.

    If functional equivalence isn’t legal equivalence, what’s the point?

  61. James Hanley says:

    If functional equivalence isn’t legal equivalence,

    I get your point, but each step on the path to increasing government power is nearly functionally identical to the one before it.

    My daughter used to play a game with the motion detecting light in our entry hallway, to see if she could move so slowly through there that she wouldn’t trigger the light. She managed to achieve it.

    So while I get your concern about this particular issue, your standard begs the question of what would allow us to detect constitutional motion. Simply saying, “this issue is too important to worry about whether we can detect a very small motion” really unnerves me. That’s Scalia’s defense for upholding every government action related to the drug war, and it’s successive presidents’ justification for every extension of executive power in the name of national security.

    That’s why I asked the question about whether the “life or death” claim was an attempt to sway via emotion. After all, both the drug war and national security are pitched using precisely that terminology.

  62. Troublesome Frog says:

    James Hanley:

    Maybe my sensor is miscalibrated, but I’m not detecting any motion at all in terms of function. Congress could, if they wanted to, pass a law that has exactly the same effects that this law does, so it’s not really meaningful to say, “Congress doesn’t have the power to enact this policy.” They clearly do. If you want to say, “Congress doesn’t have the power to enact this policy using this procedure,” that’s fine, but it’s not really protecting anybody’s liberty or preventing any expansion of power. It’s just invalidating this incarnation of the law at this time, mainly (in my eyes) to make a political point or affect a preferred policy.

    We’re all horrified when an innocent-looking person is denied an appeal on procedural grounds, so I don’t think that my horror in this case is without precedent. I’m constantly thinking of a line from Futurama: A bureaucrat finds a loophole in the rules to get out of trouble, and the head bureaucrat says, “You are technically correct… which is the best kind of correct you can be!”

  63. Lance says:

    If there exist no “fine lines” and the congress can pass any law to compel you to do anything, what exactly is the purpose of the Constitution?

    I’m being perfectly serious here. If you can say a fine is a penalty is a tax and that since every human action can be described as being related to commerce and that all commerce can be abstracted to influence interstate commerce. What exactly can congress not compel you to do?

    That’s why I’m not willing to budge that a tax is a penalty is a fine.

    It may not be much of a line but it may be all that’s stopping us from the tyranny of the majority.

  64. Troublesome Frog says:

    If there exist no “fine lines” and the congress can pass any law to compel you to do anything, what exactly is the purpose of the Constitution?

    If Congress can have the IRS take more of your money for not purchasing products–which they certainly can by current tradition–then the Constitution doesn’t protect us in this context. The only thing that prevents them from doing those crazy things is the voters. It’s not all bad, though. It’s the same thing that prevents the President from pardoning every convict in the US or Congress from taxing income at a gajillion percent or declaring war on Canada for no reason. The Constitution can’t prevent all perverse outcomes and really shouldn’t be expected to.

    If this law is actually unconstitutional, I want to see a shitload of tax hanky panky thrown out with it. The mortgage tax deduction, preferential treatment for employer health plans and all that other stuff should be fair game. If they’re not, this is just philosophical needle threading for the sole purpose of invalidating a law one happens not to like, not an actual limitation of congressional power.

  65. Michael Heath says:

    Troublesome Frog writes:

    If this law is actually unconstitutional, I want to see a shitload of tax hanky panky thrown out with it. The mortgage tax deduction, preferential treatment for employer health plans and all that other stuff should be fair game. If they’re not, this is just philosophical needle threading for the sole purpose of invalidating a law one happens not to like, not an actual limitation of congressional power.

    I’ve yet to see an informed cogent rebuttal to Obamacare with the exception of more progressive policies. So I’d argue among the informed, the opposition is about Democrats passing a bill which they think they can politically exploit with voters, not that they have coherent reasons to oppose this reform approach.

  66. Lance says:

    Troublesome Frog,

    The only thing that prevents them from doing those crazy things is the voters… The Constitution can’t prevent all perverse outcomes and really shouldn’t be expected to.

    So your claim is that the individual rights in the constitution, including the bill of rights, are really just an illusion. And that “It’s not all bad though.”

    So we are actually a true democracy and the tyranny of the majority is really OK.

    Seriously?

    While I grant that the SCOTUS can be fickle and not always observe its Constitutional limits, it is quite another thing to claim that they are powerless to reign in the power of the congress.

    And that this is “OK”.

    You seem to be blinded by an overwhelming sense of injustice at other people being granted mortgage tax exemptions.

  67. Lance says:

    Michael Heath,

    So I’d argue among the informed…

    As you have demonstrated in this thread, and many other times, “informed” is defined as agreeing with you.

  68. Troublesome Frog says:

    So your claim is that the individual rights in the constitution, including the bill of rights, are really just an illusion.

    I have absolutely zero idea where you’re getting this. My position is that the Constitution doesn’t prevent all stupid things, and this appears to be one of those cases. I mean, do you see a constitutional limit on the President’s ability to pardon people or the ability of Congress to set taxes as high as they want? I don’t. Does it follow that Congress has no limits anywhere? I don’t see why it would.

    Either Congress has the power to tax you differently based on the things you purchase or they don’t. Given the state of the tax code, they seem to be able to, so they’re going to have to carve out an exception for this law if they want to strike it down. That exception is going to have nothing to do with whether Congress can coerce you into buying things by taking your money. I don’t see that as striking a ringing blow for liberty.

    You seem to be blinded by an overwhelming sense of injustice at other people being granted mortgage tax exemptions.

    Conversely, are you just blinded by an overwhelming sense of injustice that you might be coerced into buying insurance? I think that a knee-jerk, “I don’t like this so there oughtta be a law!” isn’t all that much different from a knee-jerk, “This patronizes me, so there must be a constitutional limit.”

    I’ll be enjoying that deduction sometime in the next few months. I’m just against it because I took too many econ classes in college and see it as stupid policy. It just happens to be functionally congruent with PPACA’s mandate, wildly popular, and apparently, unquestionably constitutional. You can see why it might be a good example.

  69. Troublesome Frog says:

    As you have demonstrated in this thread, and many other times, “informed” is defined as agreeing with you.

    Seconded. I don’t think I’ve seen any “uninformed” or laking cogency. I just don’t happen to agree with the conclusions. Seriously, Michael, this sort of dismissive rhetoric is really unnecessary.

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