Free Markets, Free People

What Happened To The Mandates?

One of the more pernicious provisions of the ObamaCare bills working their way through Congress is the mandate to purchase health care insurance. It’s probably unconstitutional (arrogating to the federal government an unprecedented power to force Americans to purchase a service or product), but that isn’t going to stop it from being shoved down our collective throats anyway. According to a DKos blogger, however, the Senate bill removes the provision’s bite, which may render it constitutionally valid:

To briefly recap- the HCR requires everyone (except native americans, low income people, undocumented immigrants, followers of my cult, the grandfathered**, etc) to purchase health insurance. Violators will have to pay a $750 per head penalty on their tax returns starting in 2016. If you want to pull a Keith Olbermann and become a Mandate dodger, predictably, the HCR has this to say about it:

SEC. 5000A(g)(1)

(1) IN GENERAL.—The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of 23 chapter 68.

The IRS will have your ass, etc, etc. All very predictable. UNTIL you read on to section (2):

(2) SPECIAL RULES.—Notwithstanding any other provision of law—
‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.

Woah!!!! The mother of all loopholes! It turns out the mandate is not mandatory because the penalty is purely voluntary! What happens if you failed to pay that penalty? Nothing! No criminal charges will be filed, no penalties will be assessed, and the IRS has no right to file any lien on you. Imagine a judge saying to a convict: “This court hereby sentences you to death. Pssss- don’t worry, son- our electric chairs are not plugged in.”

Of course, just because the teeth were removed in the Senate bill doesn’t mean that they won’t be added back in when it gets reconciled with the House version.

Nevertheless, it is interesting that the Senate would make the penalty seemingly voluntary. I say “seemingly” because the provision’s language leaves open the door to other means of exacting a penalty from non-compliers. While Section 2 negates criminal penalties and prohibits liens or levies from attaching to a taxpayer’s property, just what constitutes someone’s property isn’t spelled out. It may surprise you to learn, for example, that tax dollars are not deemed your property by the federal government, such that once they are paid (or deemed owing) you don’t have any say in how they are spent outside the ballot box. By the same token, if you were to be due a tax refund of some sort, this provision appears to allow the federal government to withhold the $750 penalty. Similarly, it could also declare certain dollar-for-dollar income deductions to be invalid (up to $750) if you refuse to abide by the mandate. My reading of the provision would allow all sorts of federal government gimmicks to be used while still remaining within the letter of the law.

Another interesting aspect of Congress placing this muzzle on the mandate, is that we know it will raise costs. Indeed, the CBO has stated about other bills that an ineffective individual mandate would make the costs skyrocket as the uninsured wait until they are sick before getting any coverage. Without paying into the system from the start, this sick population will basically just receive heavily subsidized health care, paid for by the dopes who paid while they were healthy.

In short, Congress is faced with two poison pills and must choose one: either (i) unconstitutionally force Amercians to purchase insurance, or (ii) create mandates without teeth, and ensure that the bill costs far more than promised. It will be interesting to see which of the two survives.

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14 Responses to What Happened To The Mandates?

  • Which one will survive?
    I’d bet on the one that puts the government more in charge.

  • If they determine it is or may be unconstitutional, they will likely reverse things, like tax everyone an extra $750 per year, but give those with health insurance a $750 tax credit, or something along those lines.

    I’m sure with minimal effort, they will come up with some way to circumvent the constitution.  Come on, we all know empathy is more important than the constitution and law…

  • “Unconstitutional”.  I don’t think that word means what you think it means.  I’m no scholar, but I got the impression over the last several years that it means, “Anything George Bush wants to do.” George Bush doesn’t have anything to do with the health care bill, does he?  Therefore, it CAN’T be unconstitutional.

    / sarc

    But the libs’ rationale for why it isn’t unconstitutional isn’t much removed from this.  After all, SanFran Nan, when pointedly asked about the constitutionality of (IIRC) the mandates, waved the question aside with a somewhat hysterical, “Are you serious?  Are you serious?”

    The fact of the matter is that the Constitution has been on life support since the ’30s, when that group of (I think) well-intentioned but (I’m certain) dimwitted justices pretty much decided that the federal government can do whatever it wants in response to a “crisis” of sufficient magnitude.  The dems have been pitching this monstrosity with the argument that forty-odd million Americans don’t have health care insurance; that’s plenty sufficient “crisis” for even a moderate justice to find a shadow of a penumbra of an emanation in the Constitution that makes it perfectly plain that the Founding Fathers would smile on the law.

    I would also say that the strict constructionist / libertarian side lost the basic argument a long time ago: there is NO QUESTION in the minds of most Americans that the federal government should do SOMETHING about health care, and the fact that this is not an enumerated power be damned.

    So long as Americans look to DC to cure all their ills, we will continue to see our liberties eroded by an increasingly powerful, allegedly benevolent nanny state.

  • From the same system, one judicial element of which is convinced, that withholding government funding from an an organization  is a violation of Article 1, section 9 of the Constitution.
    So, THAT is Un Constitutional (well, supposedly), but forcing people to buy health insurance?  Not so much.  I look forward to when I’m required to buy my new GM vehicle, don’t you?
    While we’re at it Doc, we “need to do something” about global warming, and by heaven, we will, even if we have to use an Executive controlled agency to do it without any legislation in place.
    Most transparent administration EVER.  Well, it IS, transparently socialist.

  • I look forward to when I’m required to buy my new GM vehicle, don’t you?

    This is something that I think has been too often overlooked.  If the government can force you to buy health insurance, why can’t it also force you, say, to buy more/less electricity, government-subsidized products (e.g. GM cars; ethanol; etc.), or anything else that suits the goverment’s needs?

    • I think that Cap and Trade could eventually be expanded to cover this, if it were to pass.  I don’t think it will, but the idea behind it is to set us on a road to control of energy usage at the individual level.

  • Article 1, sec 9 allegedly prohibits bills of attainder, which this most certainly is.  So yeah, it’s not constitutional, but as we know, that means nothing now.

    • Well, not exactly.  A Bill of Attainder is an act of Congress that declares a certain person or group of persons “guilty” and passes judgement upon them without benefit of trial.  The traditional understanding is that a BoA is a legislative action that usurps the authority of the judiciary.  I can see where you’re going with this, but you haven’t made that case.  That being said, I’m interested in you making it if possible, but I’m not real certain you (or anyone) can.

      • Reid imposes a fine for the crime of not-buying gov-spec HMO without the benefit of due process.  It’s not an income tax–it’s not based on your income.  It’s not an excise tax–it’s not based on the premium.  It’s not a direct tax apportioned across the population.  It looks, acts and quacks like a duck.  I’m sure that a lawyer can pee on my leg and tell me it’s raining, but why would that be compelling?