Home Budget, Economy It Can’t Be Unconstitutional If It’s Not A Mandate

It Can’t Be Unconstitutional If It’s Not A Mandate


As I’m sure you heard, our fine Attorney General, Ken Cuccinelli, is working hard to defend us against the evils of having to buy health insurance. In fact, Cooch claims, this is not just a bad policy but actually unconstitutional, and he’s on a mission to prove it. Now, there are any number of obstacles to this suit making any headway, including the fact that its utterly devoid of any merit.  But minor quibbles aside (heh), let’s start at the beginning, with Cooch claiming a “mandate” is unconstitutional. There’s only one problem, as Ezra Klein explains: this isn’t really a “mandate” at all.

Most people will never notice the mandate, as they get insurance through their employer and that’s good enough for the government. But of those who aren’t exempt and aren’t insured, the choice will be this: Purchase insurance or pay a small fine. In 2016, the first year the fine is fully in place, it will be $695 a year or 2.5 percent of income, whichever is higher. That makes the mandate progressive.

And what happens if you don’t buy insurance and you don’t pay the penalty? Well, not much. The law specifically says that no criminal action or liens can be imposed on people who don’t pay the fine. If this actually leads to a world in which large numbers of people don’t buy insurance and tell the IRS to stuff it, you could see that change. But for now, the penalties are low and the enforcement is non-existent.

That’s right, you have the option of buying health insurance or not buying health insurance. And if you don’t buy health insurance, what happens to you? Not much, or at worst a “fine” – essentially a fee for being a “free rider” on the system – that you  have essentially chosen to pay in order to not carry health insurance coverage.  That’s some onerous “mandate,” huh?  No, didn’t think so. In fact, it’s far more accurate to call this a combination incentive and disincentive to purchase health insurance. But you don’t HAVE to. So where’s the “mandate” exactly?

By the way, what’s so hilarious about the sudden Republican hysteria on the individual (non-)mandate is that they’re the ones who came up with this idea in the first place! That’s right, back in 1993, Republicans supported the individual mandate “as a competition to the employer mandate focus of the Democrats at the time.” Even in 2006, Republican Mitt Romney wrote the following in the Wall Street Journal:

Some of my libertarian friends balk at what looks like an individual mandate…But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.

Today, suddenly, Romney and other Republicans are against THEIR OWN IDEA of an “individual mandate,” because that’s the politically expedient thing for them to do. But that doesn’t mean there’s any merit to their argument that it’s “unconstitutional.”  And that’s before we even address the question of whether being given the OPTION of purchasing insurance or paying a fee/fine/whatever is truly a “mandate” at all. I’d argue it isn’t, since you don’t have to do it (which is what “mandate” means, right?).  

Regardless, there’s almost certainly nothing unconstitutional about government requiring people to pay a fee/fine/tax/whatever, unless the courts decide to overturn centuries of legal precedent. Which means that Ken Cuccinelli is simply wasting everyone’s time and money on a wild goose chase that will lead nowhere, instead of doing his job – cracking down on predatory lenders, internet predators, gangs, etc., etc.  Gee, aren’t you glad you hired the “tough-on-crime” Republican as Attorney General?  

  • VA Blogger

    Since your argument is that its not unconstitutional because its not a mandate, does that mean if it were a mandate, you’d agree it was unconstitutional?

    The reason I ask is because your source even calls it a mandate: “That makes the mandate progressive.” Odd that you’d include that passage in arguing that it’s not a mandate.

    Attaching a fine to it is the very thing that makes it a mandated. A person is ordered by the government to purchase something. If they do not, they are ordered to pay a fine. The fact that you can choose not to pay the fine and hope to get away with it doesn’t change the fact that the government is very clearly and explicitly mandating something.

  • TomPaine

    and will post his legal analysis tomorrow. The backgrounf info is on Too Conservative today:

    ” . . . Lawyers with decades of experience will line up on both sides . . . Regardless of the rhetoric, the only thing that seems clear to me is that the law in this area is not settled. . . .

    However, I want to be clear: I believe that the AG is correct, and that the individual mandate section of the PPACA is an unconstitutional expansion of federal power, in violation of the Commerce Clause.”

    Mar 25th by Brian S

    Brian may be right, but I think that he may be pulling his analysis out of his nether regions as I doubt that he has even fully read the law to gain an adequate view of what it really encompasses. The legal analyses I have seen would seem to agree that, at the best, Cooch and the other 12 state AGs have filed their cases before the issue is legally ripe and that these cases will be dismissed without trial.

    Brian has done an excellent job with the constitutional law backgound but admits that there is no direct case law with respect to health care, which is why none of the suits even attempt to cite controlling case law!  

    • TomPaine

      at least Brian has taken a course in constitutional law.

      But the problem is that Brian has started with the thesis (no pun intended) that the law is unconstitutional on its face so he is going to look for only those facts that support his thesis (a failure common to right wing

      Republicans with (Brian) or without (Taliban Bob and Cooch) a conscience)!