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Posted at 10:56 AM ET, 02/ 7/2011

'Nothing in the Constitution even remotely guarantees a right to be a free rider'

By Ezra Klein

Georgetown's David Cole has a nice essay on the legal challenges to the individual mandate:

Near the end of his decision, Judge Hudson writes: “At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate.” Virginia Attorney General Ken Cuccinelli, who brought the suit, echoed that point the day the decision came down, insisting that “this lawsuit is not about health care. It’s about liberty.” But that is exactly what the case is not about. A decision that Congress lacks the power to enact the individual mandate says nothing about individual rights or liberty. It speaks only to whether the power to require citizens to participate in health insurance, a power that states indisputably hold, also extends to the federal government. The framers sought to give Congress the power to address problems of national or “interstate” scope, problems that could not adequately be left to the states. The national health insurance crisis is precisely such a problem. The legal question in the case is about which governmental entities have the power to regulate; not whether individuals have a liberty or right to refuse to purchase health-care insurance altogether.

But Judge Hudson and Ken Cuccinelli’s misstatements are nonetheless telling. Opposition to health-care reform is ultimately not rooted in a conception of state versus federal power. It’s founded instead on an individualistic, libertarian objection to a governmental program that imposes a collective solution to a social problem. While Judge Hudson’s reliance on a distinction between activity and inactivity makes little sense from the standpoint of federal versus state power, it intuitively appeals to the libertarian’s desire to be left alone. But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others. So rather than directly claim such a right, the law’s opponents resort to states’ rights.

On a related note, I wasn't on the Internet too much Thursday and Friday, so did anyone ever provide a persuasive response to Jon Cohn's post noting that the same principle underlying the conservative case against the individual mandate would also seem to make privatizing Social Security unconstitutional?

By Ezra Klein  | February 7, 2011; 10:56 AM ET
 
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Comments

Social Security is actually a proper income tax. You pay out of your income and the government spends it that fiscal year. There is of course the Platonic lie that it is a pension scheme but when the government goes to court over it they just say it is a straight income tax but be quiet around the proles about it.

Posted by: gorak | February 7, 2011 11:08 AM | Report abuse

"wasn't on the Internet too much Thursday and Friday, so did anyone ever provide a persuasive response to Jon Cohn's post noting that the same principle underlying the conservative case against the individual mandate would also seem to make privatizing Social Security unconstitutional?"

God knows I love a good argument (see lauren and I in wonkbook today) but on some days you fly very far away from the Earth in your musings!

Posted by: johnmarshall5446 | February 7, 2011 11:32 AM | Report abuse

@gorak:
"Social Security is actually a proper income tax."
The question EK asked was not about current Soc Sec policy but about if it was privatized. I agree that if it is privatized, then by the same comparison it is just as unconstitutional as the mandate is.
.
Which is probably a nice 'addon' benefit to those who criticize this Health Care Reform law.
.
And I do think HCR as a mandate is unconstitutional. It should be a proper tax as Soc Sec is and be done with all this carping.

Posted by: rpixley220 | February 7, 2011 11:36 AM | Report abuse

Free Rider is a silly contradiction cooked up to justify stealing from anyone for any purported benefit. So Libertarians would get to tax the writer for the benefits of voluntary choice? Hmmm.

For many voluntary solutions at work I enjoy http://www.Libertarian-International.org

Posted by: RalphKSwanson | February 7, 2011 11:50 AM | Report abuse

--*But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others.*--

That's a dishonest characterization of objections to DeathCare, Klein, on more than one level. A) Those objecting are not angling for a right to free care, and not every one without insurance needs or wants to not pay for treatment. B) DeathCare doesn't eliminate free riders, it only papers them over. The same people who allegedly can't afford to buy health insurance, still won't be able to afford to pay for the health care they use.

Posted by: msoja | February 7, 2011 12:02 PM | Report abuse

Randy Barnett took you task at Volokh Conspiracy on this point. You seem to have missed this by a country mile. Because you see this opens the door to that slippery slope.

Posted by: sailor0245 | February 7, 2011 12:07 PM | Report abuse

I suppose one might argue that the withholding for a privatized social security account is not conditional - everyone would pay, regardless of whether they chose to invest in a separate pension or annuity. It could not be construed as a penalty.

Posted by: jduptonma | February 7, 2011 12:09 PM | Report abuse

Ezra: It appears that the answer to your question is "No".

Posted by: jtmiller42 | February 7, 2011 12:10 PM | Report abuse

"did anyone ever provide a persuasive response to Jon Cohn's post noting that the same principle underlying the conservative case against the individual mandate would also seem to make privatizing Social Security unconstitutional?"

Some Cato-ish bloggers ("League of Ordinary
Gentlemen," etc) wrote some crazy stuff, arguing that it should mean SS should go; AEI gave a pretty level-headed response http://blog.american.com/?p=26318 .

That AEI response is interesting: Biggs notes the Constitutional distinction, but refuses to see that the "decision" to buy health care results in economic consequences.

That's the same thing Vinson did: "Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is 'economic activity.' There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes."

But there *is* a stopping point: decisions that aren't economic! Vinson's argument assumes the conclusion; he isn't deciding future mandates, he's deciding whether a purchase to not buy insurance affects interstate commerce -- an impact that by it's nature is insurance market-specific.

Lopez/Morrison weren't at all like that. Biggs is completely wrong that "it’s hard to see how my failure to purchase health insurance in Virginia alters the price of healthcare in Maryland," but at least he's arguing in good faith and is arguing logically.

There's a fundamental misunderstanding about insurance that runs through a lot of conservative commentary about the mandate though -- the decision to not get *any type* of insurance will always affect insurance markets and pools; and that can't be said for any other type of market. The weirdness of insurance markets doesn't really allow for an easy fit into our constitutional law.

Posted by: Chris_ | February 7, 2011 12:27 PM | Report abuse

"It’s founded instead on an individualistic, libertarian objection to a governmental program that imposes a collective solution to a social problem."

Wrong.

"It's founded on a distinctly American objection to a govennmental program that imposes a coercive political solution to what is strictly a social problem."

Fixed that for ya.

Posted by: whoisjohngaltcom | February 7, 2011 12:28 PM | Report abuse

You mean, if we privatize Social Security someone might come behind us and have it thrown out, leaving Social Security dead?

Please, please don't throw me in that briar patch.

Posted by: whoisjohngaltcom | February 7, 2011 12:31 PM | Report abuse

"But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others. "

The Constitution wasn't what gave the right to be a free rider. It was the EMTALA in 1986. That's a statute that can be changed, not a constitutional right.

http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act

"On a related note, I wasn't on the Internet too much Thursday and Friday, so did anyone ever provide a persuasive response to Jon Cohn's post noting that the same principle underlying the conservative case against the individual mandate would also seem to make privatizing Social Security unconstitutional?"

Social Security is constitutional due to the Sixteenth Amendment which allows Congress to collect taxes on income, which is what Social Security is.

http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution

With regards to privatization being constitutional, you could either add an opt out clause which would be a very bad decision economically given that you would still have to pay the Social Security tax or add an investment fund as an option that was entirely made up of U.S. Treasuries and administered by the SSA. Basically, a public option for Social Security.

The Federal government working with private companies as part of a Federal program isn't the cause of the constitutionality problem. It's the coercion of the state where you have no choice as a citizen other than to give your money to a private company or go to jail/pay a fine.

Posted by: jnc4p | February 7, 2011 12:46 PM | Report abuse

I should have actually finished this as:

"The Federal government working with private companies as part of a Federal program isn't the cause of the constitutionality problem. It's the coercion of the state where you have no choice as a citizen other than to give your money to a private company or go to jail/pay a fine under the guise of "regulating interstate commerce"."

Posted by: jnc4p | February 7, 2011 12:49 PM | Report abuse

Posted by: whoisjohngaltcom
"It's founded on a distinctly American objection to a govennmental program that imposes a coercive political solution to what is strictly a social problem."

Have you seen any polls suggesting a distinctly American objection to Social Security or Medicare? Those are both "coercive political solutions to what are strictly social problems" and a majority of Americans support those programs.

Posted by: DeanofProgress | February 7, 2011 12:52 PM | Report abuse

The whole point of health care reform is to shift costs, and the mandate is designed to compel the healthy to pay for the sick. Surely reform proponents aren't going to try to focus their arguments on a suggestion that that's improper?

Posted by: tomtildrum | February 7, 2011 12:55 PM | Report abuse

I looked at his piece, hoping to see his commentary on the Vinson decision. Alas, it appears he wrote that before the Vinson decision was published.

Posted by: eggnogfool | February 7, 2011 12:56 PM | Report abuse

Ezra,

This isn't difficult. If Obama hadn't made his irresponsible campaign promise not to raise middle class taxes, then he wouldn't be in this pickle.

To avoid constitutional controversy, he could have imposed a healthcare tax. If you enroll in a qualified healthcare plan, then you get a tax credit or avoid withholding of the tax.

Instead, he chose the stupid path of the individual mandate that the Left is tying itself up in knots to defend. All because he made a stupid campaign promise.

Posted by: ElGipper | February 7, 2011 1:42 PM | Report abuse

"so did anyone ever provide a persuasive response to Jon Cohn's post noting that the same principle underlying the conservative case against the individual mandate would also seem to make privatizing Social Security unconstitutional?"

Not sure, but I'm quite certain that SS privatization would be constitutional if private account contributions weren't mandatory. I think libertarians could live with that.

Posted by: justin84 | February 7, 2011 1:48 PM | Report abuse

--*a majority of Americans support those programs.*--

"When the people find they can vote themselves money, that will herald the end of the republic." -- Ben Franklin

It's only a matter of time, now. Of course, Franklin offered his wisdom more than a hundred years ago, so it's probably difficult for some to understand. Nevertheless, some may be dimly aware that they were indeed warned about such things.

Posted by: msoja | February 7, 2011 1:50 PM | Report abuse

^^ A guy who lived over 200 years ago shouldn't be deciding our policy now ...

About the issue of the "economic decision" to buy health insurance and the inability of conservative commentators / judges to understand that it affects interstate commerce --> I wonder if insurance companies have named such a phenomenon for their internal use?

A simple piece of insurance industry jargon or word that *they* use to describe the impact "not deciding" to get insurance has upon the market would be extremely persuasive for proponents to use in this debate, because it makes the CC objections seem overbroad and obsessed with other mandates that have zero to do with the peculiarities of insurance pools/markets.

Posted by: Chris_ | February 7, 2011 2:42 PM | Report abuse

Yeah, here's the persuasive response: If it's something Republicans want the Republican justices will say it's constitutional. If it's something the Republicans don't want, they'll say it's unconstitutional, no matter what the constitution, the precedents, or logic say.

Posted by: RichardHSerlin | February 7, 2011 2:56 PM | Report abuse

--*A guy who lived over 200 years ago shouldn't be deciding our policy now ...*--

So, you don't think there is a danger in the growth of factions intent on acquiring goods and services through government action? Or do you only see danger in the work of factions to whom you are opposed? At what point does Franklin's advice lose applicability?

Posted by: msoja | February 7, 2011 3:09 PM | Report abuse

--*If it's something Republicans want the Republican justices will say it's constitutional. If it's something the Republicans don't want, they'll say it's unconstitutional*--

Brilliant, Richard. And in all those 5-4 and 4-5 decisions, the motives of the Dem justices just happen to be oppositional out of strict adherence to constitutional principles?

Posted by: msoja | February 7, 2011 3:21 PM | Report abuse

No, I totally think both parties' big policies are ONLY ones that help people AND help powerful interests. The Dems just got better smaller policies and aren't as corrupt.

Reliance on founding father quotes always serves to hand-wave actual arguments away though ... he's has no special insight about health care just because he lived a long time ago and was involved in the founding.

Posted by: Chris_ | February 7, 2011 3:28 PM | Report abuse

--*he's has no special insight about health care*--

The is nothing special about health care that demands a particular insight. It is modern hubris and pretense that color such discussions, and serve to validate Franklin's pronouncements. Theft via government fiat precedes Franklin by centuries, yet having it dispensed by the cold, numb hand of democracy hasn't changed its nature. It's the very thing Franklin sought to prevent, and whether it's called "green energy" or "health care" or "General Motors" is immaterial.

Posted by: msoja | February 7, 2011 3:55 PM | Report abuse

"Theft via government fiat precedes Franklin by centuries"

Just spewing quotes is the same as assuming the conclusion; which is what these "but the Founders said!" arguments always seem to do. I understand what you're saying, but if you don't already agree it's theft, throwing Ben Franklin into the mix doesn't make anyone believe it more.

Posted by: Chris_ | February 7, 2011 4:37 PM | Report abuse

"Reliance on founding father quotes always serves to hand-wave actual arguments away though"

... said by the guy who just hand-waved Franklin's warning away by claiming he lived 200 years ago and as such it was no longer relevant.

Posted by: justin84 | February 7, 2011 4:45 PM | Report abuse

Haha... good point.

Posted by: Chris_ | February 7, 2011 4:49 PM | Report abuse

... but still, the warning isn't super persuasive if you don't believe it's already theft ... it's pointless to engage with every single vague warning by a founder that someone pitches as being about policy X -- the founders weren't magical soothsayers for one, and for two, it quickly becomes an interpretation-fest which has no bearing on what's actually being debated.

reminds me of the "give up a little liberty to gain a little security" quote liberals trotted out during the bush years. doesn't actually *prove* anything; it's just rhetorical flourish.

Posted by: Chris_ | February 7, 2011 4:59 PM | Report abuse

--* if you don't believe it's already theft ... *--

Tax compliance is voluntary.

Charity comes from the barrel of a gun.

Altruism is noblest when forcing one's fellows to be selfless.

Not taxing someone is an expenditure.

Wanting to keep the fruit of one's labor is selfish.

Etc.

How many nonsense things can YOU pretend to believe before breakfast?

Posted by: msoja | February 7, 2011 5:16 PM | Report abuse

--*"give up a little liberty to gain a little security" quote liberals trotted out during the bush years. doesn't actually *prove* anything; it's just rhetorical flourish.*--

When California goes belly up, my "I told you so" will be another rhetorical flourish.

When union pensions implode, my "I told you so" will be another rhetorical flourish.

My saying it doesn't *prove* a thing, but people with abilities can draw (likely, have already drawn) the necessary inferences.

Posted by: msoja | February 7, 2011 5:39 PM | Report abuse

Ezra, I'm not sure if you or Jon have actually read the Roadmap. Granted, I haven't read every single privatization plan out there, but I believe it's relevant to discuss the Ryan Roadmap plan.

1) It is VOLUNTARY for each worker to shift their contributions into a private account. It is explicitly stated in the Roadmap that if a worker wants to stay in the current system, they can.

http://www.roadmap.republicans.budget.house.gov/Plan/#retirementsecurity

2) Even if a worker chooses to shift their money, they have a choice of what funds to invest in. I'm sure at least one will be a cash or money-market fund, which though it is "private" in that it's probably administered by a bank, it's pretty much the same thing as holding your money in bills under your mattress, except with interest.

3) Probably there will also be Treasury bonds available, which are not a private product. So if you really want to stick it to the "man" or something, buy those.

Point #1 is the only one that is explicitly stated in the Roadmap, but even if you still have a problem with the plan's completely voluntary nature in that you want to own your money but you don't want to be forced to buy a private or risky investment product with it, it seems extremely likely to me that some sort of risk-free option will be available.

Posted by: tencia | February 7, 2011 6:18 PM | Report abuse

If health insurance is interstate commerce why cant I buy health insurance across state lines in Obama Care.

Posted by: bjeagle784 | February 7, 2011 6:58 PM | Report abuse

The first new rule says you HAVE to have insurance. Both my husband and I have pre-existing conditions, and although the new bill says we can't be denied coverage because of it. So far, the cheapest health insurance we've been able to find is called "Wise Health Insurance" search for it online if you are pre-existing conditions.

Posted by: timoryan1 | February 8, 2011 5:46 AM | Report abuse

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