Since I Seem to Have Struck Upon a Fruitful Topic...

Apparently, I still have more to say about the PPACA. Specifically, after listening to coverage of the arguments before the Court this week from a variety of sources, a particular element of the discussion struck a chord with me. One which I didn't like at all. And one which surprised me greatly, as this element seemed to most frequently crop up in coverage from sources which lean liberal.

Throughout the week, much of the coverage from the left seems almost dismissive about the case, as though the constitutionality of the individual mandate was obvious on its face. And especially surprising was that I was hearing this from figures who have struck me as intelligent and insightful; people who generally don't condense complex issues down to parrotable talking points. Here, I am thinking specifically of figures like the Nobel Prize-winning economist Paul Krugman, Jonathan Cohn over at The New Republic, many, many, many political bloggers from Mother Jones and The Huffington Post. Now, as I said, I to have a great deal of respect for these people: this is my way of gently rebuking them for failing to live up to their own reputations.

Not that any of them will ever actually read this, of course...

Alright. Looking at the case for and against the mandate. Firstly, I would like to be quite clear on one point: the individual mandate is not a tax. Because if it were, the 1867 Anti-Injunction Act would prohibit the Court from hearing a suit brought against it until 2015, when the penalty comes due.

Unless the mandate isn't a tax, but is an exercise of the taxing power, with the Act applying to the former, but not the later. Or unless it is a tax, but the Anti-Injunction Act isn't jurisdictional in nature. Or some combination of all of these things.

I hope that you can already see that this is not a trivial question: the very nature of the argument we employ to justify the mandate raises questions about whether the case can even be heard. As the application of the Anti-Injunction Act represents a mostly irrelevant complication---if it applies, we simply reschedule this whole debate to be continued in three years---I'm going to ignore it, but not the question of whether the mandate could be justified as an exercise of the taxing power.

Article I, Section 8 declares "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States..."  The Court has held Congress' power to lay taxes has essentially no limits, beyond those explicitly stated in the Constitution (and of those, the only remaining operative limitation is a prohibition against taxing exports), while the power to provide for the general welfare is held to authorize Congress to spend the revenues it collects however it wishes, so long as the spending can be justified as serving some broad, national interest. This is, for example, how Congress derives its authority to spend money on education or energy or conservation. Hence, if the mandate can be identified as an exercise of the power to tax and spend, its constitutionality is almost assured. Unfortunately, this also makes it very difficult to justify the mandate as an exercise of this power, as it fits very poorly into the usual paradigm.

Consider these two scenarios. In one, Congress raises everyone's taxes by an amount equal to the penalty they would have to pay in 2015 and simultaneously authorizes a tax credit of equal size, the receipt of which is conditioned on providing proof of possession of a certain minimum standard of health insurance coverage. In the other, Congress may or may not raise taxes, but does authorize a vast spending program to reimburse or directly finance healthcare expenditures for every citizen. Both of these measures would be on incredibly firm constitutional ground: Congress could accomplish the former by modifying an existing tax--thus skirting the question of whether a separate tax would be constitutional; tax credits, subsidies and incentives are, of course, as common as rain and nearly as constitutional--and it could accomplish the latter by dropping the eligibility requirements for Medicare/Medicaid--programs which have already been tested and which passed legal muster. The former is Congress creating something like the mandate through its power to tax

The trick is, the mandate is neither of these things. It's certainly not an example of spending--the penalty is paid by those to whom it applies--but it's also not really a tax: a tax is attached to various forms of economic activity (this has nothing to do with the activity vs. inactivity debate; that comes later) but the mandate instead is attached to a particular state of being. Every tax you can think of is attached in some way to a transaction: receiving an income, making a purchase, etc. The mandate instead acts like an inverted subsidy (a thing which does attach itself to states of being), and it's not clear at all where such a creature properly resides in the framework of taxing and spending. On the taxation side we have the dichotomy of taxes and subsidies (pay us bleep for doing blop unless blap, in which case pay less) and on the spending side we have a dichotomy of disbursement and penalties (we'll give you bleep to do blop unless blap in which case we pay you less); but the mandate possess neither the taxation-like qualities of the former nor the associated spending program needed for the latter.

To be sure, Article I only directs Congress to provide for the general welfare which does not necessarily entail that Congress can only spend money on the general welfare: maybe in some cases the general welfare could be provided for more effectively by taking money instead, thus making mandates like these the stick to the subsidy's carrot. But this would represent a nearly unprecedented expansion of federal authority: without some overarching limiting principle, it's difficult to see how any constraints on Congressional power could be sustained, given that now every quality of life previously divorced from economic activity is now open to effective taxation and as Chief Justice Marshall phrased it "the power to tax involves the power to destroy."

This, by the way, is the thought process behind the Right's "Broccoli Mandate" argument. And yes, I am very aware that the "state of being" subject to the penalty is at most only one step removed from unquestionably taxable (and, in fact, taxed) economic activity. But that's the argument as I see it.

This post is now quite long enough, so I'll leave it be for now. Next time, I'll talk about the relationship between the mandate and the commerce clause, and, if all goes well, explain the reasons why the mandate might indeed be constitutional. Later.