Saturday, June 30, 2012

Lies and distortions you may have been told about the healthcare ruling

You, no doubt, have heard a lot of chatter about the U.S. Supreme Court's healthcare ruling this week. You have also heard a lot of misinformation.

I can't possibly address it all, but it let's handle two of the whoppers that are coming from *both* sides.

1. "The individual mandate to buy health insurance was upheld."

No, it wasn't. It was struck down as a mandate -- you know, a command. The Court held 5-4 that neither the Commerce Clause nor the Necessary and Proper Clause allow Congress to mandate that a person buy something or else pay a penalty (a fine or even, theoretically, imprisonment, although that wasn't at issue here) for noncompliance.

What *was* upheld was what was *always* a given: the ability of Congress to nudge your behavior in a direction by allowing for a choice -- not a mandate -- of "do X or pay a tax," either option being perfectly lawful.

And if you think there's no difference, you are so wrong. In the first instance you are only a law-abiding citizen if you do what the mandate tells you to do -- in this instance, buy insurance. If you don't, you have broken the law, and you pay a penalty for it. In the second instance, you have a choice -- buy or pay a tax -- and neither choice renders you a lawbreaker.

To put in more "normal" or "real world" terms, I presume you don't view a speed limit as anything but a mandate: go the proper speed or pay a fine as a lawbreaker. Or up the ante a bit: a statute criminalizing robbery is a mandate -- the only way to be in compliance with it is not to break it. Rob someone and you are penalized with a trip to jail. You didn't have two lawful choices. On the other hand, here, eIther choice is perfectly lawful. Buy the insurance or pay the tax; it's only if you refuse to do either that you would break the law.

Got it? The *mandate* to buy insurance was struck down. The choice to *either* buy insurance or pay a tax was upheld.

Where the dispute really played out, in the majority and dissenting opinions, was that once the mandate was struck down, the following question arose: could what Congress did here fairly be deemed, instead of a mandate, to be the buy/choose-to-pay-a-tax choice discussed above, or was this so clearly just a mandate that it would be judicial legislating to convert the law from a mandate to a choice involving a tax?

*That* question was answered 5-4 that, yes, there was enough wiggle room in the statute to deem it to involve a choice between getting insurance and paying a tax.

2. "Now Congress can force you to buy broccoli or pay a tax."

The operative falsehood in that phrase is the first word -- "Now" -- as if that weren't true previously. It has always been true. The question this case addressed, after striking down the mandate, was whether this statute could fairly be read to be that type of buy-the-product-or-pay-the-tax choice.

The only groundbreaking aspect of this case, for those fearing mass imposition of broccoli-buying rules, is that the federal government cannot force you to buy broccoli and penalize you as a lawbreaker if you don't do it. But they can (and always could) tax broccoli buyers differently from non-broccoli buyers.

The real-world implications of all of these legalities are profound for a simple, non-legal reason: far more people hate new taxes than hate government mandates. (Plenty of people hate both, mind you). But this legislation never would have passed if it had been called a new tax from the outset. Nor would a broccoli tax. Now that Chief Justice Roberts and four other justices (Kennedy, Scala, Alito and Thomas) have ruled that federal mandates to buy a product or pay a penalty as a lawbreaker are unconstitutional, the only way to pass them in the future is to call them a new tax scheme involving two lawful choices ("buy the product or pay a tax").

And the political odds of *that* happening are slim indeed.

One other point -- but this is more of a case of "I wonder what will happen?" Now that you have a choice -- buy insurance or pay a tax -- will *more* people opt not to buy insurance than under the mandatory scheme when they would have been labeled a lawbreaker and had a penalty imposed on them if they didn't obey the command to buy insurance? It's an interesting question, and if enough people opt to pay the tax, I wonder what the implications are for the whole healthcare system. Time will tell.

UPDATE: The press' failure to "get" the above distinction -- that the mandate to buy, in which buying is the only lawful option, is dead and has been converted into a plan where you have two lawful choices -- buy or pay a tax -- is kind of staggering. Smart lefty guy Eugene Robinson thinks the mandate was upheld, and that there is still a "penalty" for failing to comply with it. Smart righty guy Mark Steyn seems to understand the technical difference, but seems to think that: (a) it is a distinction without a difference, and (b) we are now going to be swamped with new "buy or pay the tax" schemes from a rampaging federal government that has been unmoored from any restraint -- ignoring the fact that Americans hate taxes and that Congress would never have the cajones to actually pass a "buy or pay the tax" scheme that is labeled as such, which it most certainly will have to be in the future (i.e., this was a one-time free pass to Congress limited by a carefully-constructed Roberts opinion, not a license to go wild).

On the other hand, George Will seems to get the intricacies of the whole thing rather well, offering the opinion that, overall, this decision is at least as strong for its restricted view of Commerce Clause power than it is for the approval of the "buy or pay a tax" scheme this one time. And Keith Hennessey (of whom I had, truth be told, never heard before this, but, apparently he is a GOP guy) actually gets into the whole notion that more people may choose to be lawful taxpayers without insurance than would have opted to be lawbreakers paying a penalty.  

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