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?  


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