I noticed this post a while back from Ramesh Ponnuru over at his spot in National Review Online. He poses two questions on the individual mandate in the Affordable Care Act based on these premise:
One persistent argument in the individual-mandate debate is that it’s not a mandate at all: The government isn’t forcing anyone to buy health insurance so much as it is offering them a choice: buy insurance or pay a higher tax bill […]
Which has essentially been my personal take on the Minimum Coverage Provision. The first question (original emphasis):
1) Would you characterize all laws this way? One could describe the laws against homicide the same way: The government isn’t saying you can’t kill people, it’s just offering you a choice of not killing people or going to prison. […]
He suggests in the title (Obamacare and Hobson’s Choice) that the individual mandate presents a “take it or leave it” choice – hence “Hobson’s Choice,” named after the English stable owner Thomas Hobson who offered customers horses in stalls closest to the door or no horse at all. This doesn’t strike me as fitting the individual mandate, but apparently Hobson’s Choice is commonly misused to represent the false illusion of choice.
What Ponnuru was probably aiming for is Morton’s Fork; usually named after Archbishop of Canterbury John Morton who posited that taxes should be collected on those living modestly (which meant they were saving up and could afford it) and those living extravagantly (which meant they were wealthy and could afford it) alike. The premise is similar to being “stuck between a rock and hard place,” which is to say either outcome is unpleasant. I see Morton’s Fork as being more relevant to Ponnuru’s idea – that the individual mandate is a choice between two unlikable things. For expediency I’ll ignore the supposition that access to affordable health care (through insurance) is an “unpleasant situation,” which strikes me as eyebrow-raising at the least.
There are two ways to answer the first question; yes and no. My first reaction was an instinctive “no, of course not,” for reasons I’ll explain here in a second. Saying yes might strike some as being too simplistic. Sure, all laws can be boiled down to their essence as codified norms backed by the power of force from a police state. The power of the state lies in the ability to enact and enforce consequences for noncomplience and all laws offer essentially the same choice; compliance or noncompliance. Ergo, the minimum coverage provision in the ACA is an exercise of the states power to influence compliance. Which is to say, sure, you could boil it down that way.
Yet I think I’ll stick with my first answer – no, of course not. Why? Because when judging the merits of a statute I operate on the assumption, like I assume most people do, that I live in a society where the state has the power to make and enforce laws. Being able to say no to this question is an admission within the realm of such an assumption, as in “I understand that there are degrees of difference within this umbrella of the states’ authority.”
Which leads us to the second question (my emphasis in bold):
2) If you don’t characterize all laws this way, does the difference lie in the severity of the consequence the government imposes? If that’s what makes the constitutional difference, what if future Congresses slowly ramped up the penalty level? At some point would the mandate become an actual mandate? If so, at what point would the Court be justified in treating the mandate as a mandate?
Short version – yes. The long version is related to something that’s been talked about by several folks, most recently by economists Betsey Stevenson and Justin Wolfers (my emphasis in bold):
The tax system is also equivalent to a collection of individual mandates, like the one in the Obama health-care law, with penalties for Americans who fail to buy insurance. For many people, that’s how our system works. You and your neighbor might have the same income, but if, unlike your neighbor, you fail to have a mortgage or buy as much health insurance, then you have to pay higher taxes.
You may feel very differently about tax deductions, government handouts and mandates backed by penalties. Economically, though, they are identical. They yield the same outcomes and provide the same incentives.
Which is to say, the minimum coverage provision works it’s incentive mojo the same way that any tax-related incentive works – by encouraging you do something, whether it’s owning a home, having children, buying a hybrid vehicle, operating a small business, etc. Not doing any of the above has the same consequences as not having health insurance under the MCP in the Affordable Care Act; you owe more in federal taxes.
However, I slightly digress insomuch as you might have missed the rather smooth transition Ponnuru makes:
[…] does the difference lie in the severity of the consequence the government imposes? If that’s what makes the constitutional difference […]
These are really two different questions meant to equate something I think you shouldn’t: Does whether or not the MCP constituting a mandate lie in it’s severity, and is that the constitutional difference?
The first part I’ve already partially answered. If the MCP is a mandate unlike other tax code provisions, then I have yet to see/read why….other than of course a tax penalty “feeling” differently than a tax credit or deduction. If all tax credits were turned into tax penalties would we might differently about them but the effects would be identical.
The second part is really the wrong question, at least as far as the Constitution is concerned. The Constitutional question isn’t whether the federal government can mandate activity, even economic activity, but whether the health insurance market constitutes interstate commerce (hint, it does) and whether Congress can levy tax penalties on people for not having coverage.
* Side Note: Did you know that “mandate,” in relation to the MCP, isn’t even included in the language of the bill? It’s actually referenced as a “requirement”, which I know is semantics, but still…