The Individual Mandate: Not a Tax, Except for When It Is
Along the lines of my oped with Bob Levy in today’s Philadelphia Inquirer explaining why an individual mandate is unconstitutional, here’s a poor, unsuccessful letter I submitted to the editor of the Washington Post:
To the Editor:
In one column, Ruth Marcus [“Health scare tactics,” Nov. 11] says it is “not true” that the House-passed health care overhaul “raises taxes for just about everyone.” The same column, however, explains that anyone who doesn’t comply with the bill’s mandate that everyone purchase health insurance, or the associated fines, “could, in theory, be prosecuted — just like others who cheat on their taxes” (emphasis added).
A subsequent column [“An ‘Illegal’ Mandate? No,” Nov. 26] notes, “The individual mandate is to be administered through the tax code,” and finds constitutional authorization for it in Congress’ power to tax.
Let me see if I have this straight. The Constitution’s taxing power authorizes it. The IRS would enforce it. If I don’t fork over what it demands, I face fines and jail time. But somehow, the individual mandate is not a tax.
Fortunately, there are much better ways to reform health care.
The Reid Individual Mandate: An Affront to the Constitution
Cato chairman Bob Levy and I have an oped in today’s Philadelphia Inquirer explaining why the individual mandate in Majority Leader Harry Reid’s (D-NV) health care bill is unconstitutional. (Our colleague Ilya Shapiro blogs about a similar piece by our colleague Randy Barnett.)
In sum, supporters of an individual mandate claim that two powers granted to Congress by the states in the Constitution — the Commerce Clause and the taxing power — give Congress the legal authority to force Americans to purchase health insurance. We reject both theories.
First, the behavior that Congress seeks to regulate — the non-purchase of health insurance — is neither interstate, nor is it commerce. Unfortunately, under the Supreme Court’s tortured interpretation of the Commerce Clause, that isn’t dispositive, so we explain why even the Court’s Commerce Clause jurisprudence doesn’t allow for an individual mandate.
Second, the individual mandate cannot be justified by pointing to Congress’s taxing power, because the tax it would impose is neither an excise tax, nor an income tax, nor a direct tax apportioned according to population.
Game over. All your base are belong to us.
We’ve already received many responses to the oped, some of them intelligent. One reader asks how we can describe the non-purchase of health insurance as “a non-act that harms no one”:
We all know that when folks without insurance go to the emergency room, those of us with insurance are harmed in the form of higher premiums.
Originally, we had included a section expanding on our “harms no one” claim that would have addressed this point, but we dropped it for brevity. Here it is:
Most uninsured people don’t end up in an emergency room. As for those who do, research shows that the uninsured as a group more than pay their own way. Many simply pay their bills without imposing costs on anyone. And because they typically pay premium prices for medical care — far more than is ordinarily reimbursed by public or private insurance — they more than offset the cost of uncompensated care to the uninsured overall, according to MIT economist Jonathan Gruber and others.
Even if we ignore that evidence, uncompensated care to the uninsured accounts for about 2.2 percent of national health expenditures. The left-leaning Urban Institute writes, “Private insurance premiums are at most 1.7 percent higher because of the shifting of the costs of the uninsured to private insurers in the form of higher charges.” That’s hardly a crisis.
And think about it: an uninsured person is wheeled into an emergency room, unconscious and bleeding. Is this person able to harm anyone? Is this person in a position to impose costs on you? Of course not.
What imposes costs on you are the laws that require the doctors and hospitals to treat those patients without regard to ability to pay — and the ethical codes that would impel doctors to treat them even if there were no such laws. If you have a problem with those laws/codes, make them the focus of your ire. If you support them, surely you can’t be upset that they increase your premiums by 1.7 percent. Isn’t that a small price to pay to live in a compassionate society?
But if you’re still angry about that 1.7 percent, bear in mind that the Reid individual mandate — which is essentially a bailout for private health insurance companies — would increase the cost of insurance for some people by 30 percent and would require additional taxes on top of that.
Fortunately, there are much better ways to reform health care.
Health Care Mandate Is Unconstitutional — and Don’t Leave Home Without the Cato Constitution
Yesterday the Heritage Foundation released a new paper on the unconstitutionality of the proposed health care mandate. Think tanks aren’t normally in the habit of promoting their peer institutions’ work, but this paper is incredibly timely and its lead author is Cato senior fellow Randy Barnett. You really should go read it.
Interestingly, at the event unveiling the paper, Eugene Volokh (of UCLA Law School and the Volokh Conspiracy blog) at one point wanted to quote the Constitution and realized he wasn’t carrying one! Eugene asked if anyone had a Heritage Constitution. Former Attorney General Ed Meese, now chairman of Heritage’s Center for Legal and Judicial Studies, saved the day by passing Eugene his… handy, dandy, Washington Post-bestselling Cato Constitution. It seems that General Meese likes our version because it’s smaller and so fits easier into your pocket. (I would add that it also features the Declaration of Independence — as does Heritage’s — as well as a preface by my boss, Roger Pilon.)
You can watch the entire health care event, which features Senator Orrin Hatch along with Randy and Eugene, here (the Constitution bit starts at about 40:15; I ask a question at 1:04:46). The bottom line — beyond the health care abomination — is that you should always carry your Cato pocket Constitution wherever you go. Like Josh Blackman, I keep one in every suit jacket (as well as backpacks, totebags, briefcases, and roll-aboards). You never know when you — or someone else — may need it.
They also make great stocking stuffers and gifts for any night of Hanukkah (as does the latest Cato Supreme Court Review, though you may need a slightly larger stocking).
Health Care: Not Close to Over
The fat lady hasn’t even started to warm up yet.
The narrow 220-215 victory in the House on Saturday night was a step forward on the road to a government takeover of the health care system. But as close and dramatic as that vote was, that was the easy part. The Senate must still pass its version of reform—which will not be the bill that just passed the House. Nancy Pelosi was, after all, able to lose the votes of 39 moderate Democrats. Harry Reid cannot afford to lose even one. A conference committee must reconcile the two vastly different versions. And then, Pelosi must hold together her 3 vote margin of victory (if it gets that far). Yet several House Democrats who voted for the bill on Saturday said they did so only to “advance the process.” Their vote is far from guaranteed on final passage. And, House liberals are almost certain to be disappointed by the more moderate bill that may emerge from the conference.
Among the more contentious issues:
Individual Mandate: This should’ve been low-hanging fruit. Democrats agreed on a mandate early in the process. But it became increasingly plain that a mandate would hit those with insurance as well as the uninsured — forcing people who are happy with their plan to switch to a different, possibly more expensive plan. With this mandate now being seen as a middle-class tax hike, qualms have developed. The House bill contains a strict mandate, with penalties of 2.5 percent of income backed up by up to five years in jail. The Senate Finance Committee, on the other hand, watered down the mandate’s penalties and delayed the mandates implementation.
Employer Mandate: The House bill also contains an employer mandate, a requirement that all but the smallest employers provide insurance to their workers or pay a penalty tax of up to 8 percent of payroll. The Senate, looking at unemployment rates over 10 percent, seems unlikely to include an employer mandate.
The Public Option: The House included, if not a “robust” public option, at least a semi-robust one. But moderate Democrats in the Senate are clearly not on board. Joe Lieberman (I-CT) says that he will join a Republican filibuster if the public option is included. Harry Reid is trying various permutations: a trigger, an opt-in, an opt-out. But as of now there is not 60 votes for any variation.
The Sheer Cost: Fiscal hawks like Sen. Evan Bayh (D-IN) say they will not support a bill that adds to the deficit or spends too much. But the house bill cost a minimum of $1.2 trillion.
Taxes: The House plan to add a surtax on incomes of $500,000 or more a year has no support in the Senate. At the same time, the Senate plan to slap a 40 percent excise tax on “Cadillac” insurance plans is unacceptable to key Democratic constituencies like labor unions.
Abortion: Conservative Democrats insisted on a strict prohibition on the use of government funds for abortion. The bill could not have passed without the inclusion of that provision. House liberal swallowed hard and voted for the bill, despite what they called “a poison pill” anyway with the expectation that it will be removed later. If the final bill includes the prohibition at least a couple liberals could defect. If it doesn’t, conservative Democrats won’t be on board.
Immigration: The Senate Finance Committee included a provision barring illegal immigrants from purchasing insurance through the government-run Exchange. The House Hispanic Caucus says that if that provision is in the final bill, they will vote against it.
As if these disagreements among Democrats wasn’t bad enough, public opinion is now turning against the bill.
President Obama has called for a bill to be on his desk before Christmas—the latest in a series of deadline that are so far unmet. It is hard to see how Congress can meet this one either. The Senate has not yet received CBO scoring of its bill and is not prepared to even begin debate until next week at the earliest. That debate will last 3-4 weeks minimum, assuming there are 60 votes for cloture. That means, the bill cant’ go to conference committee until mid-December, even if everything breaks the way Harry Reid wants. Privately, Democrats are now suggesting late January, before the State of the Union address, is the best they can do.
The fat lady can go back to sleep—this isn’t over yet.
Are Savvier Democrats Playing Rope-a-Dope?
Let’s simplify things and say there are essentially two parts to the health care bills moving through Congress: an individual mandate that would effectively nationalize health care, and a government-run program that would explicitly nationalize it slowly, over time.
One explanation for Majority Leader Harry Reid (D-NV) including the government-run program — supporters call it a “public option”; I prefer Fannie Med — in the Senate bill is that Fannie Med’s popularity is on the rise. Another explanation is that Reid had to include it to remain majority leader and get left-wing Nevadans to work for his re-election.
But a third explanation, not inconsistent with the others, is that the savvier Democrats know that all they need to nationalize health care is an individual mandate. So they’ll let Fannie Med take a beating, and then pass the more sweeping individual mandate when opponents are too exhausted and distracted by their “victory” over Fannie Med to notice.
(Cross-posted at Politico‘s Health Care Arena.)
Nobody Considers Health Insurance Mandates a Tax? Really??
As my colleague Jeffrey Miron noted earlier today, when grilled by George Stephanopolous on whether the so-called “individual mandate” is a tax increase, Obama replied, “Nobody considers that a tax increase….You can’t just make up that language and decide that that’s called a tax increase…My critics say everything is a tax increase.”
Where do Obama’s critics get these wacky ideas? From a bunch of nobodies, that’s who!
Princeton economist Uwe Reinhardt, quoted by Larry Summers (1987):
[Just because] the fiscal flows triggered by mandate would not flow directly through the public budgets does not detract from the measure’s status of a bona fide tax.
Economist Larry Summers, Obama’s National Economic Council chair (1989):
Economists have generally devoted little attention to mandated benefits regarding them as simply disguised tax and expenditure measures… Essentially, mandated benefits are like public programs financed by benefit taxes… [If] the mandated benefit is worthless to employees, it is just like a tax from the point of view of both employers and employees…There is no sense in which benefits become ‘free’ just because the government mandates that employers offer them to workers.
Columbia University economist Sherry Glied, Obama’s appointee to HHS Assistant Secretary for Planning and Evaluation, in the New England Journal of Medicine (2008):
The mandate is in many respects analogous to a tax. It requires people to make payments for something whether they want it or not. One important concern is that the government will provide insufficient funds for the subsidies intended to accompany the mandate. In that case, the mandate will act as a very regressive tax, penalizing uninsured people who genuinely cannot afford to buy coverage.
Congressional Budget Office (2009):
Under some proposals, firms would be required to make payments to the federal government if they chose not to offer health insurance to their employees, and individuals who did not comply with the requirement to obtain insurance would have to pay a penalty. Such payments would be equivalent to a tax or a fine, and the government’s receipts should be recorded in the budget as federal revenues.
Here’s a question: if an individual mandate is not a tax, why exempt anybody? If an employer mandate isn’t a tax, why exempt small businesses?
Filed under: Cato Publications; General; Health Care; Tax and Budget Policy
Have the Democrats Outsmarted the Republicans on Health Care?
In their attempt to defeat Obamacare, Republicans have focused their criticism on the public option, painting it as the most objectionable feature of existing proposals. Senator Max Baucus, (D-Mont.), has now proposed a plan without the public option. This leaves the Republicans in an awkward position, especially since Baucus’s plan is projected to cost less than earlier proposals.
If Republicans oppose the Baucus plan, they surely risk the ire of voters who will be told during the mid-term elections, “The Republicans blocked a plan that would have covered the uninsured and reduced the deficit.”
The problem is, the public option was never the crucial issue; instead, it was the mandate to purchase insurance. Once government mandates insurance coverage, it gets to define what constitutes insurance, which means it can ban pre-existing condition clauses and the like. The mandate also”justifies” large subsidies for insurance, to avoid non-compliance with the mandate. So, an individual mandate, which the Baucus plan includes, implies a rapid takeover of the entire health care system by the federal government.
Something like the Baucus plan will pass. It will either cost far more than existing projections, if government administrators fail to impose the restrictions on reimbursements that generate the projected cost savings, or it will involve massive rationing of care.
The Democrats played it perfectly. The Republicans got sucker-punched.
Washington Post Misrepresents Individual Mandates
Here’s a poor, unsuccessful letter to the editor I sent to The Washington Post:
“Like Car Insurance, Health Coverage May Be Mandated” [July 22, page A1] paints a misleading picture of proposals to require Americans to purchase health insurance – i.e., an “individual mandate.”
First, the article lacks balance. It cites three politicians who support an individual mandate but none who oppose it, a group that includes a majority of Republicans. The article claims an individual mandate “has its roots in the conservative philosophy of self-reliance,” even though most conservatives, including the movement’s flagship magazine National Review, oppose the idea. The closest the article comes to offering an opposing perspective is one conservative who has supported an individual mandate in the past and may yet again, just not yet.
Second, the article makes the demonstrably inaccurate claims that an individual mandate “lowers overall costs” and “help[s] keep premiums down” by adding more young and healthy people to the insurance market. Forcing healthy people to purchase insurance does not affect premiums for sicker purchasers, because insurers set premiums according to each purchaser’s health risk. The article confuses a mandate with price controls, which force low risks to pay more so that high risks can pay less.
Finally, if an individual mandate reduced overall costs, then health care spending would be falling in Massachusetts, which enacted the nation’s only individual mandate in 2006. Instead, overall health spending is rising, and the rate of growth has accelerated under the mandate. Rising health spending implies rising health insurance premiums, which has also been the Massachusetts experience.
Debating the Individual Mandate
Mark Pauly is usually an ally of those who support free-market health care reform. But, occassionally, he strays off the reservation. Recently, he and I debated the merits of an individual mandate for health insurance on publicsquare.net. Click here to listen.
My Question for the President
President Obama will hold a press conference tonight to answer questions about his health care reform proposal. This is what I would ask him:
Mr. President, during your campaign, you said, “I can make a firm pledge…Under my plan, no family making less than $250,000 a year will see any form of tax increase.” You also said that “no one will pay higher tax rates than they paid in the 1990s.”
Your National Economic Council chairman, Larry Summers, has written that employer mandates “are like public programs financed by benefit taxes.” Under the House health reform bill, an uninsured worker earning $50,000 per year, with no offer of coverage from her employer, would face a 15.3-percent federal payroll tax, a 25-percent federal marginal income tax rate, an 8-percent reduction in her wages (to pay the employer penalty), plus a 2.5 percent uninsured tax. In total, her effective marginal federal tax rate would reach 50.8 percent.
Do you stand by those pledges, and would you therefore veto any employer mandate or individual mandate as a tax on the middle class?
The Health Care Reform Bill Will Cost $500 Billion in New Taxes
House Democrats released their 1,018 page health care reform bill, America’s Affordable Health Choices Act of 2009, yesterday.
This bill is a dog’s breakfast of bad ideas paid for by more than $500 billion in new taxes. The reform would impose an individual mandate on individuals, requiring every American to buy a government designed insurance package or pay a new tax equal to 2.5 percent of their income. At a time of rising unemployment, businesses would be required to provide health insurance to workers or pay a new tax equal to 8 percent of workers wages. These new taxes could drive the total cost to taxpayers much higher than the $500 billion in direct taxes in the bill.
In addition, the bill includes a host of new insurance regulations that will drive up the cost of insurance premiums, and a new government-run insurance plan that will “compete” with private insurance. That government-run plan will ultimately force millions of Americans out of their current insurance plan and into the government-run system. This is a health care “reform” under which Americans will pay more for worse care.
To get an idea of what sort of bureaucratic nightmare that would ensue with passage of this bill is illustrated by the Republican Staff of the Joint Economic Committee here.
For regular updates on the reform process as it progresses, check out Cato’s health care Web site.
Sen. Kennedy’s Budget-Breaking “Reform” Bill
It appears that the Obama administration has decided to disown the venerable Senator. No wonder. The Congressional Budget Office estimated the ten-year cost of Sen. Kennedy’s bill at $1 trillion, but admitted that its analysis was incomplete.
Now the consulting group HSI Network, LLC comes foward with an estimate of $4 trillion:
The Senate Committee on Health, Education, Labor and Pensions (HELP) have proposed a health reform bill called the Affordable Health Choice Act (AHC) that seeks to reduce the number of uninsured and increase health system efficiency and quality. The draft legislation was introduced on June 9th, 2009. The proposal provided adequate information to suggest what the impact would be of AHC using the ARCOLA™ simulation model. AHC would include an individual mandate as well as a pay or plan provision. In addition, it would include a means-tested subsidy with premium supports available for those up to 500% of the federal poverty level. Public plan options in three tiers: Gold, Silver and Bronze are proposed in a structure similar to that of the Massachusetts Connector, except that it is called The Gateway. These public plan options would contain costs by reimbursing providers up to 10% above current reimbursement rates. There is no mention of removing the tax exclusion associated with employer sponsored health insurance. There is also no mention of changes to Medicare and Medicaid, other than fraud prevention, that could provide cost-savings for the coverage expansion proposed. Below, we summarize the impact of the proposed plan in terms of the reduction on uninsured, the 2010 cost, as well as the ten year cost of the plan in 2010 dollars.
HELP Affordable Health Choices Act
- Uninsurance is reduced by 99% to cover approximately 47,700,000 people
- Subsidy – Tax Recovery = Net cost:
- $279,000,000,000 subsidy to the individual market
- $180,000,000,000 subsidy to the ESI market with
- Net cost: $460,500,000,000 (annual)
- Net cost: $4,098,000,000,000 (10 year)
- Private sector crowd out: ~79,300,000 lives
HSI figures that a lot more people will take advantage of federal health insurance subsidies, driving costs up far more than indicated by the CBO figure. (H/t to Phil Klein at the American Spectator online.)
Of course, no one knows what the bill would really cost in operation. But the history of social insurance and welfare programs is sky-rocketing expense well beyond original projections. Go back and look at the initial cost estimates for Medicare and Social Security, and you will run from the room simultaneously laughing and crying.
Health care reform would be serious business at any moment of time, but especially when the country faces $10 trillion in new debt over the next decade on top of the existing $11 trillion national debt. And with the $100 trillion Medicare/Social Security financial bomb lurking in the background, rushing to leap off the financial cliff with this sort of health care legislation would be utterly irresponsible.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
