The Fight Over The Individual Mandate Is Not About Liberty
Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.
“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”
I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”
There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.
When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.
Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.
The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.
By: Ezra Klein, The Washington Post, Posted February 2, 2011
Mark Pauly, Father of the Individual Mandate: “Either We Have To Have A Mandate Or Make Insurance Free For Everyone”
In 1991, economist Mark Pauly was the lead author of a Health Affairs paper attempting to persuade President George H.W. Bush and his administration to adopt a universal health-care proposal that would keep the government from eventually taking over the sector. “Our view is that excessive government intervention will make matters worse,” wrote Pauly and his co-authors. “Our strategy, therefore, is to design a scheme that limits governmental rules and incentives to the extent necessary to achieve the objectives.”At the heart of that strategy was the individual mandate, which would go on to be promoted by congressional Republicans, the Heritage Foundation, and Massachusetts Gov. Mitt Romney before being adopted by Democrats and becoming a bete noire of conservatives. I spoke to Pauly earlier this afternoon, and an edited transcript of our conversation follows.
Tell me about your involvement in the development of the individual mandate.
I was involved in developing a plan for the George H.W. Bush administration. I wasn’t a member of the administration, but part of a team of academics who believe the administration needed good proposals to look at. We did it because we were concerned about the specter of single payer insurance, which isn’t market-oriented, and we didn’t think was a good idea. One feature was the individual mandate. The purpose of it was to round up the stragglers who wouldn’t be brought in by subsidies. We weren’t focused on bringing in high risks, which is what they’re focused on now. We published the plan in Health Affairs in 1991. The Heritage Foundation was working on something similar at the time.
What was the reaction like after you released it?
There was some interest from Republicans. I don’t recall whether they formally wrote a bill or just floated it as an idea [It did make it into a bill — Ezra], but Democrats in Congress said it was “dead on arrival.” So that was the end of my 15 minutes.
Was the constitutionality of the provision a question, either in your deliberations or after it was released?
I don’t remember that being raised at all. The way it was viewed by the Congressional Budget Office in 1994 was, effectively, as a tax. You either paid the tax and got insurance that way or went and got it another way. So I’ve been surprised at that argument. But I’m not an expert on the Constitution. My fix would be to simply say raise everyone’s taxes by what a health insurance policy would cost — Congress definitely has the power to do that — and then tell people that if they obtain insurance, they’ll get a tax break of the same amount. So instead of a penalty, it’s a perfectly legal tax break. But this seems to me to angelic pinhead density arguments about whether it’s a payment to do something or not to do something.
That gets to one of the central questions in this argument, which is whether the individual mandate is a penalty for economic inactivity or whether it’s part of a broader system of regulations affecting a market for health care that we’re all participating in, whether we’re buying insurance that day or not.
I see it in the latter way. We thought it was a good idea to do everything possible to encourage people to get insurance. Subsidies will probably pick up the great bulk of the population. But the point of the mandate was that there are a few Evil Knievals who won’t buy it and this would bring them into the system. In our version, the penalty was effectively equal to the premium of a policy. You paid the penalty and you got the insurance. That’s one of my puzzlements here: In the new law, the actual level of the penalty is quite small compared to the price of a policy. It’s only about 20 percent of the cost of a policy.
Do you think the mandate is severable from the larger bill?
I think you could do that. I’d want to take some other things out of the bill, too. But the main part I favor and the part that deals with the uninsured are these subsidies for lower-middle-income people. The great bulk of them would take insurance with those breaks. That won’t go away. The mandate props up community rating, which I’m not a fan of. So I’d throw overboard both the mandate and the community rating. Then I’d add high-risk pools.
You say the mandate was developed as a way to avoid single-payer health care. As I see the evolution of this issue, Richard Nixon countered single-payer with an employer mandate, then Clinton co-opted the employer mandate and Republicans moved to an individual mandate, and then Obama co-opted the individual mandate. But there’s nowhere else to go, as far as I can tell. If the individual mandate dies, it seems to me that the eventual universal coverage solution will rely heavily on government programs — we’ll have single payer in fact even if we don’t have it in name.
I think there’s a slippery slope in that direction. I have mixed feelings about the mechanics of the current bill. Our idea was to have tax credits and very little additional government control over insurance markets, and the legislation has an awful lot of that. I believe you could achieve almost the same reduction of the uninsured with the subsidies and without the mandate. But CBO says that you leave about 40 percent of the uninsured population without coverage in that scenario. If we want to close that gap, then either we have to have a mandate or make insurance free for everyone and run by the government.
Interview By: Ezra Klein and posted in The Washington Post, February 1, 2011
Social Security and The Deficit: Associated Press Passes Off Dishonest Editorial About Social Security Finances
The insidious ways that conservative narratives bleed into our mainstream economic discourse as objective truths is a dominant theme in my book, and this story by the Associated Press’s Stephen Ohlemacher — ostensibly a piece of reporting rather than opinion — is one of the most egregious examples I’ve encountered. Check out the lede:
“Sick and getting sicker, Social Security will run at a deficit this year and keep on running in the red until its trust funds are drained by about 2037, congressional budget experts said Wednesday in bleaker-than-previous estimates.”
Is it “sick”? Social Security has $2.5 trillion in T-Bills sitting in a trust fund, is financed through 2037 and if nothing were to change it would still be able to pay out higher benefits than it does today, indefinitely.
Is it getting sicker? Well, the 2000 Social Security Trustees’s report (PDF) projected that the trust fund would run out in … 2037. But the 1997 report (PDF) expected the trust fund to be depleted by 2029 — 8 years earlier than currently projected. So in that sense, it’s “healthier” today than it was 13 years ago. More from the AP’s thinly veiled editorial:
“The massive retirement program has been suffering from the effects of the struggling economy for several years. It first went into deficit last year but had been projected to post surpluses for a few more years before permanently slipping into the red in 2016.”
“This year alone, Social Security will pay out $45 billion more in retirement, disability and survivors’ benefits than it collects in payroll taxes, the nonpartisan Congressional Budget Office said.”
OK, this is just incredibly dishonest. Let me explain why:
When he says the program is “in the red” what he’s talking about is that current tax revenues being paid into the system have fallen below current benefit payments. Which should be unsurprising with wages stagnating and an unemployment rate of 9.4 percent.
But what’s unsaid is that the Social Security’s revenues aren’t limited to current tax receipts, thanks to the interest earned on those T-Bills in the trust fund. They earned 5.1 percent in 2008, and 4.8 percent in 2009. When you include that earned interest, as any honest reporter must do, the program has not “gone into the red,” and — if we define “going into the red” as total annual outlays exceeding total income, including interest income — it won’t until at least 2018, according to the Trustees’ latest report (PDF).
Yes, the Trust Fund grew last year, is growing this year, and will continue to grow for several more years, until it reaches a projected $4.2 trillion dollars. Back to the AP misinforming the public:
“That figure nearly triples – to $130 billion – when the new one-year cut in payroll taxes is included.”
“Congress has promised to replenish any lost revenue from the tax cut, but that’s hardly good news, either, adding to the federal budget deficit. In another sobering estimate, the congressional office said government red ink this year will increase to $1.5 trillion, the most in U.S. history.”
Could any ordinary citizen reading that possibly know that, by law, Social Security’s financing is separate from the rest of the federal budget, and that the program has not added a single penny to the deficit?
These are two wholly separate issues — there’s Social Security’s financing, which has been in surplus since 1983, and then there’s the federal budget, which is in deficit because of the downturn, tax breaks showered on the wealthy and trillions in war spending. (Note: unlike the Social Security program, we don’t have a War Trust Fund with its own dedicated revenue stream.)
The AP then turns the program’s greatest strength into a weakness. Behold the sleight-of-hand:
“Social Security has built up a $2.5 trillion surplus since the retirement program was last overhauled in the 1980s. Benefits will be safe until that money runs out. That is projected to happen in 2037 – unless Congress acts in the meantime.”
No, Congress could raise taxes to cover the shortfall anytime — nothing need be done in “the meantime.”
But more to the point, this narrative ignores the fact that the Trust Fund had a specific purpose: to ease the glut of baby-boomers entering the system. As I wrote in September, it “was a far-sighted act of governance.”
At the time, the oldest boomers were 37 years old, and the youngest were just 19. In 2037, when the fund is projected to be tapped out, the oldest baby boomers still kicking will be 91 and the youngest will be 73 years old. Not to be morbid, but given that the life expectancy of Americans is 78.1 years today, that means that the “glut” of baby-boomers receiving benefits will be receding in the nation’s rearview mirror. In other words, the trust fund will have done exactly what it was intended to do.
This point never seems to wind up in the conversation.
But it gets even worse, as Ohlemacher advances perhaps the most dishonest spin in the entire debate — that the trust fund is not a huge pile of T-Bills, but just “IOUs” — that the funds have been “borrowed” by the government.
“The $2.5 trillion surplus, however, has been borrowed over the years by the federal government and spent on other programs. In return, the Treasury Department has issued bonds to Social Security, guaranteeing repayment, with interest.”
Again, this conflates two wholly separate issues. Let’s run it down:
The national debt is (approximately) $14 trillion. None of that debt is a result of Social Security, which is fully funded and has run surpluses for years.
The federal government issued $14 trillion in T-bills to cover its budget shortfalls — that’s the national debt. It exchanged those $14 trillion in T-bills for cash (which it spent on programs other than Social Security). It must pay back that cash, with interest, as those T-bills are redeemed.
So, yes, it borrowed money — it borrows money by issuing Treasury Bills, which are held by individuals, institutions and governments. One of those institutions happens to be the Social Security Administration — $2.5 trillion of those T-Bills were exchanged for cash paid into Social Security by workers (and the interest is earned). Which is good, as it’s a safe investment for the surpluses that have been generated. They couldn’t just stick those trillions under a mattress.
But those T-Bills could just as easily have been exchanged for cash from China, or from private pension funds — there would be no difference at all. That would have happened if there had never been a Social Security program in the United States. The $14 trillion in debt would be exactly the same — it doesn’t matter who holds the T-Bills.
All of the above is why the deficit has nothing to do with SS — they are two completely separate issues being conflated by the “entitlement crisis” crowd. And no “neutral” reporter should ever write a story that simply carries their water for them.
By: Joshua Holland | Sourced from AlterNet, January 27, 2011
Social Security-Raising False Alarms
If there’s a better government program than Social Security, I’d like to know what it is. It has gone a long way toward eliminating poverty among the elderly. Great numbers of them used to live and die in ghastly, Dickensian conditions of extreme want. Without Social Security today, nearly half of all Americans aged 65 or older would be poor. With it, fewer than 10 percent live in poverty.
The Center on Budget and Policy Priorities tells us that close to 90 percent of people 65 and older get at least some of their family income from Social Security. For more than half of the elderly, it provides the majority of their income. For many, it is the only income they have.
When you see surveillance videos of some creep mugging an elderly person in an elevator or apartment lobby, the universal reaction is outrage. But when the fat cats and the ideologues want to hack away at the lifeline of Social Security, they are treated somehow as respectable, even enlightened members of the society.
We need a reality check. Attacking Social Security is both cruel and unnecessary. It needs to stop.
The demagogues would have the public believe that Social Security is unsustainable, that it is some kind of giant contributor to the federal budget deficits. Nothing could be further from the truth. As the Economic Policy Institute has explained, Social Security “is emphatically not the cause of the federal government’s long-term deficits, since it is prohibited from borrowing and must pay all benefits out of dedicated tax revenues and savings in its trust funds.”
Franklin Roosevelt couldn’t have been clearer about the crucial role of the payroll taxes used to finance Social Security. They gave the beneficiaries a “legal, moral and political right” to collect their benefits, he said. “With those taxes in there, no damn politician can ever scrap my Social Security program.”
There has always been feverish opposition on the right to Social Security. What is happening now, in a period of deficit hysteria, is that this crucial retirement program is being dishonestly lumped together with Medicare as an entitlement program that is driving federal deficits. Medicare costs are a serious problem, but that’s because of the nightmarish expansion of health care costs in general.
Beyond Medicare, the major drivers of the deficits are not talked about so much by the fat cats and demagogues because they were either responsible for them, or are reaping gargantuan benefits from them, or both. The country is drowning in a sea of debt because of the obscene Bush tax cuts for the rich, the wars in Afghanistan and Iraq that have never been paid for and the Great Recession.
Mugging the nation’s grandparents by depriving them of some of their modest, hard-earned Social Security retirement benefits is hardly an answer to the nation’s ills. And, believe me, those benefits are modest. The average benefit is just $14,000 a year, which is less than the minimum wage would pay. With employer-provided pensions going the way of the typewriter and pay telephones, the income from Social Security is becoming more precious by the day.
“If we didn’t have Social Security, we’d have to invent it right now,” said Roger Hickey, co-director of the Campaign for America’s Future. “It’s perfectly suited to the terrible times we’re going through. Hardly anyone has pensions anymore. People’s private savings have taken a huge hit, and home prices have been hit hard. So the private savings that so many seniors and soon-to-be seniors have counted on have just been wiped out.
“Social Security is still there, and it’s still paying out retirement benefits indexed to wages. It’s the one part of the retirement stool that is working.”
The deficit hawks and the right-wingers can scream all they want, but there is no Social Security crisis. There is a foreseeable problem with the program’s long-term financing, but it can be fixed with changes that do no harm to its elderly beneficiaries. One obvious step would be to raise the cap on payroll taxes so that wealthy earners shoulder a fairer share of the burden.
The alarmist rhetoric should cease. Americans have enough economic problems to worry about without being petrified that their Social Security benefits will be curtailed. A Gallup poll taken recently found that 90 percent of Americans ages 44 to 75 believed that the country was facing a retirement crisis. Nearly two-thirds were more fearful of depleting their assets than they were of dying. The fears about retirement are well placed — most Americans do not have enough to retire on. But there should be no reason to believe that Social Security is in jeopardy.
The folks who want to raise the retirement age and hack away at benefits for ordinary working Americans are inevitably those who have not the least worry about their own retirement. The haves so often get a perverse kick out of bullying the have-nots.
By: Bob Herbert, Op-Ed Columnist, The New York Times, January 24, 2011
Clearly Constitutional: A Primer on the Constitutionality of the Affordable Care Act
Nearly three dozen judges have now considered challenges to the landmark Affordable Care Act and the overwhelming majority of these cases have been dismissed. Nevertheless, a single outlier judge in Virginia has embraced the meritless arguments against the new health care law and another judge in Florida also appears poised to break with the overwhelming consensus of his colleagues.
With only a few exceptions, these lawsuits principally challenge the Affordable Care Act’s minimum coverage provision—the provision requiring most Americans to either carry health insurance or pay slightly more income taxes—falsely arguing that Congress lacks the constitutional authority to enact such a provision. It is true that Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, but while Congress’s powers are not unlimited, they are still quite sweeping. There is no doubt that the Affordable Care Act fits within these enumerated powers in three ways, as this issue brief will demonstrate.
Congress has broad power to regulate the national economy
A provision of the Constitution known as the “commerce clause” gives Congress power to “regulate commerce … among the several states.” And there is a long line of Supreme Court decisions holding that Congress has broad power to enact laws that substantially affect prices, marketplaces, or other economic transactions. Because health care comprises approximately 17 percent of the national economy, it is impossible to argue that a bill regulating the national health care market does not fit within Congress’s power to regulate commerce.
Nevertheless, opponents of the Affordable Care Act claim that a person who does not buy health insurance is not engaged in any economic “activity” and therefore cannot be compelled to perform an undesired act. Even if these opponents were correct that the uninsured are not active participants in the health care market— and they are active, of course, every time they become ill and seek medical care—nothing in the Constitution supports this novel theory. Indeed, this theory appears to have been invented solely for the purpose of this litigation. Congress has enacted countless laws which would be forbidden under this extra-constitutional theory:
- Guns: President George Washington signed a law that required much of the country to purchase a firearm, ammunition, and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution.
- Civil rights: The Civil Rights Act of 1964 compelled business owners to engage in transactions they considered undesirable—hiring and otherwise doing business with African Americans.
- Insurance mandates: The Affordable Care Act is not even the only federal law requiring someone to carry insurance. The Price-Anderson Act of 1957 requires nuclear power plants to purchase liability insurance and the Flood Disaster Protection Act requires many homeowners to carry flood insurance.
- Other mandates: Other laws require individuals to perform jury service, file tax returns, and register for selective service.
The minimum coverage provision is the keystone that holds the Affordable Care Act together
The Constitution also gives Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution” its power to regulate interstate commerce. As Supreme Court Justice Antonin Scalia explains, this means that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
The act eliminates one of the insurance industry’s most abusive practices—denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Seven states enacted a pre-existing conditions law without also passing an insurance coverage requirement, and all seven states saw health insurance premiums spiral out of control. In some of these states, the individual insurance market collapsed.There is a way out of this trap, however. Massachusetts enacted a minimum coverage provision in 2006 to go along with its pre-existing conditions provision and the results were both striking and immediate. Massachusetts’ premiums rapidly dropped by 40 percent.
In other words, because the only way to make the pre-existing conditions law effective is to also require individuals to carry insurance, that requirement easily passes Scalia’s test.
The link between the minimum coverage provision and the Affordable Care Act’s insurance regulations also sets this law aside from other hypothetical laws requiring individuals to purchase other goods or services. The national market for vegetables will not collapse if Congress does not require people to purchase broccoli, nor will Americans cease to be able to obtain automobiles absent a law requiring the purchase of cars from General Motors. Accordingly, a court decision upholding the Affordable Care Act would not provide a precedent enabling Congress to compel all Americans to purchase broccoli or cars, despite the law’s opponents’ claims to the contrary.
Congress has broad leeway in how it raises money
Congress also has the authority to “lay and collect taxes” under the Constitution. This power to tax also supports the minimum coverage provision, which works by requiring individuals who do not carry health insurance to pay slightly more income taxes. Taxpayers who refuse insurance must pay more in taxes while those who do carry insurance are exempt from this new tax. For this reason, the law is no different than dozens of longstanding tax exemptions, including the mortgage interest tax deduction, which allows people who take out home mortgages to pay lower taxes than people who do not.
Opponents of the Affordable Care Act respond that the minimum coverage provision somehow ceases to be a tax because the new law does not use the word “tax” to describe it, but this distinction is utterly meaningless. Nothing in the Constitution requires Congress to use certain magic words to invoke its enumerated powers. And no precedent exists suggesting that a fully valid law somehow ceases to be constitutional because Congress gave it the wrong name.
By Ian Millhiser, Policy Analyst and Blogger for the Center for American Progress where his work focuses on the Constitution and the Judiciary-January 18, 2011
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