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Posted at 3:00 PM ET, 02/ 2/2011

The fight over the individual mandate is not about liberty

By Ezra Klein

Whatever the legal argument about the individual mandate is about, it's not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan's former solicitor general, put this well at Wednesday's Senate Judiciary Committee hearing.

"As I recall," he said, "the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional."

I'd disagree slightly with Fried's characterization of the policy debate -- the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate -- but on the law, even the panel's anti-mandate witnesses agreed with his characterization of the single payer's legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, "All conservatives, I'd imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well)."

There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government's coverage. That doesn't make it more constitutional, of course. But it does suggest that the dividing point isn't liberty.

When it comes to the legislation itself, the key question actually comes down to semantics. It's broadly agreed that tax breaks are constitutional. The individual mandate could've been called the "personal responsibility tax." If you can show the IRS proof of insurance coverage, you then get a "personal responsibility tax credit" for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It's called a "penalty" rather than a "tax." As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term 'penalty' was substituted for the term 'tax' in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress." And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they're not more damaging to liberty than taxes.

Despite the overheated rhetoric that's been tossed around in this debate, I don't believe our forefathers risked their lives to make sure the word "penalty" was eschewed in favor of the word "tax." This is not a country built upon semantics. And I don't think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate -- and I mean mere months before -- Sen. Chuck Grassley (R-Iowa) said there was "bipartisan consensus" around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate's Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn't see the individual mandate as a threat to liberty, and they weren't constantly emphasizing that it was a tax rather than a penalty.

The principle conservatives are fighting for is that they don't like the Affordable Care Act. And having failed to win that fight in Congress, they've moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn't. That's fair enough, of course. But they didn't see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the "personal responsibility tax," nor would they be mollified if it was called the "personal responsibility tax." The hope here is that they'll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what's going on.

By Ezra Klein  | February 2, 2011; 3:00 PM ET
Categories:  Health Reform, Legal  
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Comments

Clearly you don't understand what the conservative definition of liberty is.

"There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government's coverage."

Your explanation includes the premise that a person's illness must be the responsibility of the government. That premise is not in my definition.

Posted by: whoisjohngaltcom | February 2, 2011 3:17 PM | Report abuse

We need to act to prevent conservatives from using the courts to overturn a monumental progressive achievement. Fortunately, there is an easy way to achieve this - give Republicans what they say they want and repeal the individual mandate. Leave the rest of the ACA untouched. Is it bad policy? Probably, yes. With luck, the insurance industry and other interested parties will howl loudly enough that some alternative (perhaps an open enrollment period, perhaps just a tax + tax credit system) can be put into place.

Whether or not it is replaced, this move will have the effect of mooting the issue and denying the Supreme Court (and other conservative justices) their most straightforward means of overturning the ACA.

To be clear - I tend to support the individual mandate as good policy, but right now it threatens to drag down the entire ACA, and that isn't a gamble worth taking.

Posted by: JpS42 | February 2, 2011 3:20 PM | Report abuse

It is quite humorous to me how Ezra is so blatantly biased in his analysis of this issue, only pointing out the few Republicans who have switched sides on this issue and not mentioning even one Democrat who has. He conveniently forgets to mention that Obama campaigned against the individual mandate, saying that his plan would make insurance so affordable that you would not have to force people to buy it. Ezra also forgets to mention Obama's repeated denials to George Stephenapolous that the individual mandate penalty was actually a tax. And now his lawyers are saying it is. Obama is the biggest hypocrite on this issue and Ezra does not even mention his changing positions. This is my laugh of the day.

Posted by: cummije5 | February 2, 2011 3:23 PM | Report abuse

It's absolutely ridiculous to think anyone should judge a bill's constitutionality by what the phrasing. If it walks like a tax and quacks like a tax, it might as well be a tax. A bill should be judged by what it does. Anyway, even in its current state, the penalty is added to the tax code and payed along with taxes.

Posted by: tsutton | February 2, 2011 3:44 PM | Report abuse

cummije5:

If you think your 'I know you are, but what am I?' response to Ezra's post is an effective rebuttal, you're dreaming.

Posted by: Fishpeddler | February 2, 2011 3:53 PM | Report abuse

"This is not a country built upon semantics."

Well, unless one holds to the Originalist position.

Posted by: vagueofgodalming | February 2, 2011 3:53 PM | Report abuse

"Your explanation includes the premise that a person's illness must be the responsibility of the government. That premise is not in my definition."

It might not be whoisjohngaltcom's definition, but it is the law's definition. If someone is hit by a car, the hospitals are required by law to treat that person, at cost to taxpayers. Virtually everyone in this country will pass through the health-care system at some point or another, whether or not they have insurance. So a person's illness is the responsibility of the government, and by default, all of us, whether whoisjohngaltcom agrees with that or not.

Posted by: workmonkey | February 2, 2011 3:54 PM | Report abuse

I'd like to see an interview with some of the people who don't have health insurance, but have the money for it, and still don't want it.

Who are these people?

Posted by: JkR- | February 2, 2011 4:02 PM | Report abuse

Well I am a liberal who supports the ACA except the individual mandate which I believe is an unconstitutional infringement on liberty.

The individual mandate can never be likened to a "tax" because taxes are something you pay in return for gov't services. Not something you pay for failure to participate in private commerce. Period. End of story. Unconstitutional.

What they could have done was to create a tax to fund the "uncompensated care" resulting from the EMTALA. This tax would have largely fallen on the uninsured - I'd say structuring it as a progressive tax relative to income would be the only fair way. However, the tax would also have to fall on the insured, since one-third of uncompensated care is actually provided to the insured.

This EMTALA tax would be tiny compared to the individual mandate penalty. That would be because it was a tax meant to address a relatively small problem - uncompensated care. Not a huge sweeping thing like the individual mandate, whose real purpose is to enrich the insurance companies and their lobbyists who dole out generous contributions to both parties, as well as to entrench our employer-based system (by making individuals join it on an exchange), a system which is national jobs suicide in a modern global economy.

Posted by: michaelh81 | February 2, 2011 4:06 PM | Report abuse


This is the only reason that I oppose the new health care scheme. It is the generational unfairness that I abhor. Putting another burden on the young, healthy and generally poorer population to insure the property of an older, sicker and richer group rankles.

Posted by: edbyronadams | February 2, 2011 4:08 PM | Report abuse

The libertarian definition of "liberty" is based on the premise that the conditions of the market are a natural constraint, and therefore the market is not active coercion by other people. Under this definition, if someone doesn't have the means to buy a necessity (e.g. healthcare), this is NOT coercion of that person, but the redress to government which causes increased taxation of others is coercion of the others. To argue this, libertarians often use Isaiah Berlin's distinction between "negative" and "positive" liberty as if it were decisive, and then insist that liberty is ONLY to be negative liberty. So it is all semantics to begin with.

When their argument starts to fray upon its nonsensical foundation, they quickly jump to a completely different argument, about economic efficiency: that healthcare would be more efficient if it were a free market. This too is wrong, and so when that argument starts to fray, they jump back to the liberty argument.

This oscillation between the freedom and efficiency arguments about markets is common in libertarian discourse. We see it here all the time. Neither argument really sticks in theory or in reality, and so they tend to come across to the rest of us as emotionalists and religionists.

Posted by: Lee_A_Arnold | February 2, 2011 4:08 PM | Report abuse

@michaelh81 -- is exactly right. It is also astounding to see so many people argue that Republicans supported a mandate -- as if the Supreme Court employs bi-partisan support (or even hypocritical non-support) as one of its tests of Constitutionality.

Posted by: rnotigan | February 2, 2011 4:17 PM | Report abuse

"So a person's illness is the responsibility of the government, and by default, all of us, whether whoisjohngaltcom agrees with that or not."

Non sequitur. Nothing makes it a federal concern. Not to even mention the total fraud of "universal care" which simply hides the rationing in models approve of my liberals. You guys are losing steam on this -- there will be other challenges yet to come, and you will have to defeat all of them to prevail; we only have to win one case to throw out the mandate, and so far half of our challenges have survived the first round.

Posted by: whoisjohngaltcom | February 2, 2011 4:34 PM | Report abuse

"It is also astounding to see so many people argue that Republicans supported a mandate -- as if the Supreme Court employs bi-partisan support (or even hypocritical non-support) as one of its tests of Constitutionality."

People bring up that Republicans supported a mandate as proof that they don't really care about the mandate, nor think it is a threat to liberty. They simply don't like AMA and are looking for any reason to throw it out. The argument about the mandate is a red herring - Republicans embraced the mandate for years. They are hypocrites by pretending they are now against it. They'd be against tax cuts if it got AMA thrown out.

Posted by: workmonkey | February 2, 2011 4:38 PM | Report abuse

When did liberty become "We, the liberal elite of everything there is we aim to control, grant you two choices: individual mandate or single-payer"?

Posted by: cprferry | February 2, 2011 4:39 PM | Report abuse

"I'd like to see an interview with some of the people who don't have health insurance, but have the money for it, and still don't want it.

Who are these people?

Posted by: JkR-"

Would someone deemed "under-insured" suffice? Because there's over 75 million of them in the U.S. and they can't all be poor. They just have different priorities or in good enough health to direct their resources elsewhere.

Posted by: cprferry | February 2, 2011 4:46 PM | Report abuse

"You guys are losing steam on this -- there will be other challenges yet to come."

Losing steam? Whatever happens to ACA in the next few years, there remains a high majority of Americans who both want universal coverage - however it is achieved - and cost controls. Republicans are on the losing end of this argument - Even if they get their wet dream and get this law tossed out, their embracing of the status quo is ultimately a losing proposition. With or without them, health care is going to either force reform on America or bankrupt us. Either way, the status quo won't remain. So no, we aren't "losing steam". Most likely, the end result of this bill's repeal will be single payer one day, which will be the only option left if this problem is left to fester as Republicans desire.

Posted by: workmonkey | February 2, 2011 4:48 PM | Report abuse

Would someone deemed "under-insured" suffice? Because there's over 75 million of them in the U.S. and they can't all be poor. They just have different priorities or in good enough health to direct their resources elsewhere.

Posted by: cprferry | February 2, 2011 4:46 PM

------------------

Get them on camera and have them explain and justify their position. Again, they have money and choose to push their health expense risk onto others. (BTW, there's no way there's 75 million that don't want health insurance at any cost.)

Let's hear from them.

Posted by: JkR- | February 2, 2011 4:51 PM | Report abuse

Again, this whole topic--HCR-- is pointless to discuss anymore. Republicans don't know what they want, and if they do then it's lost on me. They were for the individual mandate before they were against it. They're were against judicial activism before they were for it, &c, &c. St. Ronald Reagan signed the law saying that hospitals were required to treat whoever walked in the door.

If you don't have insurance, you're offloading the risk onto others. Take responsibility--get insurance!

Posted by: nickthap | February 2, 2011 5:00 PM | Report abuse

JkR-,

If you want to interview someone who has chosen to push their health expenses onto others look to your nearest Medicare patient. The private insured pay higher fees to providers and facilities to make up for the low payment rates, delays and administrative costs of dealing with government health programs (not to mention their share of taxes for the programs).

How do you propose to eliminate cost shifting by the uninsured by PPACA which depends on cost shifting by expanding government health programs and providing more subsidies?

Are you sure PPACA is about cost shifting or is it merely to increase government influence?

Posted by: cprferry | February 2, 2011 5:02 PM | Report abuse

cummije5: I don't hold it against Republicans for not supporting the individual mandate now for political reasons, or Obama changing his mind on the individual mandate after he got elected, but what Ezra is trying to say is that suddenly declaring an idea that you supported for the last 20 years unconstitutional isn't really about the Constitution - it's about politics. There is a distinct difference between changing your opinion on policy given political restraints, and suddenly declaring that idea unconstitutional after supporting it for 20 years.

Posted by: beellinor | February 2, 2011 5:07 PM | Report abuse

Is that your defense of the willfully uninsured?

Posted by: JkR- | February 2, 2011 5:11 PM | Report abuse

"Under this definition, if someone doesn't have the means to buy a necessity (e.g. healthcare), this is NOT coercion of that person"

Of course it is not coercion of that person. You aren't coercing someone by not providing them with a service, and to imply that it is in fact coercion is completely ridiculous.

If the person who wants said service puts a gun to the head of another person and demands it, THAT is coercion.

"To argue this, libertarians often use Isaiah Berlin's distinction between "negative" and "positive" liberty as if it were decisive"

It is decisive. Positive liberty is incompatible with negative liberty. One cannot accept both.

A man is entirely justified in taking your wallet and using your money to buy the food he needs under the concept of positive liberty. In fact, he would be justified putting a gun to a farmer's head and demanding food directly from him - after all, he has the right to food.

A world in which anyone can take whatever they claim to need by force is a world full of coercion and utterly lacking in liberty.

"So it is all semantics to begin with."

No, it's really not.

Posted by: justin84 | February 2, 2011 5:13 PM | Report abuse

Mr. Klein: These court cases about the individual mandate concern the limits of power of the federal government to run every aspect of our lives. It should scare you how powerful the federal government has become. Apparently you're not scared, because your major talking point is to question the integrity of your opponents.

No wonder you receive such vitriol in the comments section!

Posted by: ElmerStoup | February 2, 2011 5:19 PM | Report abuse

"The principle conservatives are fighting for is that they don't like the Affordable Care Act."

No, that may be the principle of select *Republicans*. The principle of *conservatives* is that they are against universal healthcare and most socialized medicine beyond a basic, no-frills "safety net," particularly as those programs are implemented at higher and higher levels of government.

Posted by: whoisjohngaltcom | February 2, 2011 5:25 PM | Report abuse

Says whoisjohngaltcom: "The principle of *conservatives* is that they are against universal healthcare and most socialized medicine beyond a basic, no-frills "safety net,....."

Well, that's it, in a nut shell, isn't it? A principled position, but one held by, I would suspect, a microscopic percentage of the American population.

Posted by: bigfish2 | February 2, 2011 6:14 PM | Report abuse

"Is that your defense of the willfully uninsured?

Posted by: JkR-"

No, my defense for the willfully uninsured is that it's a free market, or as free as current government influence has allowed it to be, and that they are free to choose the health care options that suit their lifestyles best.

And less you think they do that by sticking you with the bill. They in fact reduce their health care spending drastically and cover 35% of their costs (and risk their credit for the remainder). Another 34% is assumed by existing government programs. The remainder is picked up by charity, private programs, providers, and yes in part by the private market.

However, you're more likely paying more for that person on Medicare than the willfully uninsured. In fact, you're probably paying more due to Medicare fraud.

Posted by: cprferry | February 2, 2011 6:14 PM | Report abuse

@JkR- wrote:
"I'd like to see an interview with some of the people who don't have health insurance, but have the money for it, and still don't want it."
.
I give you Rep Dennis Kucinich! He *chose* not to get dental insurance and then sued the House cafeteria when he damaged his dental work biting into an olive he thought was already de-pitted.

Posted by: rpixley220 | February 2, 2011 6:17 PM | Report abuse

whoisjohngaltcom wrote:
The principle of *conservatives* is that they are against universal healthcare and most socialized medicine beyond a basic, no-frills "safety net"
.
really, you want Medicare gone?
.
That is decided go beyond basic no-frills stuff. You can't privatize it without massive regulation because they would just drop the unprofitable people. Which in the case of Medicare is everybody. The 'voucher' system Rep Ryan promotes is likewise a disaster. Covering everybody is hard without making everybody participate as the system prior to ACA clearly showed.
.
Then there's the problem of putting the retirement safety net into the stock market. Then you're 'safety net' would need a safety net. Not exactly small gov't there.
.
When the GOP/conservatives come up with comparable solutions we're happy to debate them. So far though, they've amounted to "Don't get sick, or die quickly in poverty" that Rep. Grayson so bluntly put it.

Posted by: rpixley220 | February 2, 2011 6:26 PM | Report abuse

"[R]eally, you want Medicare gone?" - rpixley220

Actually ObamaCare guts the funding of Medicare to raise funds for other activities. People who believe ObamaCare saves money are the same people who believe in Santa Claus and perpetual-motion machines.

Posted by: ElmerStoup | February 2, 2011 6:37 PM | Report abuse

Excellent cprferry, so they should have no problem making themselves known and defending their positions. Maybe they have a compelling story to tell that will change minds. I'd like to know how many there are, and what they're reasons are.

I've never heard anyone defend the subsidy-refusing willfully uninsured who were themselves subsidy-refusing willfully uninsured.

I'm certain you're not one of them

Posted by: JkR- | February 2, 2011 6:43 PM | Report abuse

Mitchell said

"The individual mandate can never be likened to a "tax" because taxes are something you pay in return for gov't services. Not something you pay for failure to participate in private commerce. Period. End of story. Unconstitutional."

1. This isn't true at all. The other parts of the bill such as a ban on refusing to insure based on pre existing conditions is one of the many services the bill provides.

Even though you might not purchase health care immediately you're virtually guaranteed to purchase it at some point whether you get sick or you start a family. Just because you choose to not tax advantage of the services now, doesn't mean that you won't in the future.

2. The govt taxes/fines plenty of things that you are not provided a service for. An excise tax is one example.

3. The government has the power to tax in order to fund the general projects/services that the government provides. We don't have a one for one tax system where your taxes are always earmarked for a specific project. (The income tax for example)

So even if you aren't provided services under the ACA you recieve other government services.

Posted by: world_dictator | February 2, 2011 7:00 PM | Report abuse

JkR-,

No, I'm not. I'm on the side that you won't hear liberals acknowledge and don't want to hear about. I'm among all those young college graduates that have seen their employment options limited by an uncertain business climate of increased federal regulations. The poor who don't or can't meet the eligibility requirements of many social programs. The young that are being forced to pick up the bill the baby boomer excesses and socialist utopia of their privileged children.

Just one of the many non-elite just trying to survive the "answers" you've imposed on us.

Posted by: cprferry | February 2, 2011 8:44 PM | Report abuse

--*The fight over the individual mandate is not about liberty*--

Is that your premise or your conclusion, Klein? It looks to be both.

It's *always* about freedom when one is considering government action. Pick all the government stooges you like to whisper sweet lies that it's otherwise and you're only fooling yourself.

Add another one to the "Stupid" file.

Posted by: msoja | February 2, 2011 8:48 PM | Report abuse

michaelh81: "The individual mandate can never be likened to a "tax" because taxes are something you pay in return for gov't services. Not something you pay for failure to participate in private commerce."

The government service the ACA "tax" pays for is money to doctors and hospitals to reimburse them for those who don't pay their bills that the hospitals are required to treat (even if the payments are indirect).

If I don't participate in private commerce by purchasing a house, I pay additional taxes, since I do not receive the interest and property tax deduction. If I don't send money to non-profit organizations, I pay more taxes. If I don't have children that I support, I pay additional taxes since I don't get the exemption. So, it's not really valid to say "taxes" are "Not something you pay for failure to participate in private commerce."

Posted by: imsa0041 | February 2, 2011 9:12 PM | Report abuse

Democrats could allow a vote in the Senate, but they simply wouldn't win.

The majority they had has evaporated as more and more Democrats are jumping ship. Why? As Nancy said, they are now learning what's in the bill now that it has passed....and it ain't good.

Posted by: WrongfulDeath | February 2, 2011 9:41 PM | Report abuse

Mr. Klein's post is really irritating. He can't win on the "merits" of ObamaCare, so he questions the good faith of people who disagree with him. Really classy, really civil?

Posted by: ElmerStoup | February 2, 2011 10:21 PM | Report abuse

Justin84: "Of course it is not coercion of that person. You aren't coercing someone by not providing them with a service, and to imply that it is in fact coercion is completely ridiculous.... Positive liberty is incompatible with negative liberty. One cannot accept both... no, it's really not [semantics]."

In a comment full of semantic distinctions! In reality, if a person loses a finger because he did not have the money to get it sewed back on, he is not choosing that outcome. He is forced into it by the market. We don't need a single person doing it to him, to be coercion. We all have coerced him, by the general institutional arrangements prevailing at the time. Whatever they are. That it might be the institution of "the market" doesn't sprinkle holy water upon it. Indeed further: whether the others successful in the market are unaware of his suffering or indifferent to his suffering, it does not matter: they are still acting in the realm of their POSITIVE liberty by choosing to do or not to do something. And they are acting in the realm of his NEGATIVE liberty because in such a case, he usually clearly signals that he wishes to be infringed upon, to save his finger! But let's not belabor the point: really the positive/negative liberty matter is an interesting distinction for the categorizing of settled law, but it does not prejudge the vagaries of life except as a dogma, and anyway it is not decisive here. Further still, positive and negative liberty are not always incompatible, and the statement "one cannot accept both" appears to be a direct assertion of dogmatism, and based upon the parsing of definitions. To the point, healthcare is different, and because of the endemic nature of the 80/20 distribution of income, it needs the approach of overlapping institutions, market and government both, with all their market failures and government failures. But you knew that.

Posted by: Lee_A_Arnold | February 2, 2011 10:25 PM | Report abuse

It is about politics...period. How many times have we seen GOP'ers blast something that doesn't exist in the bill? Every day? Every hour? How many GOP'ers have actually read the bill? Any of it?

I mean, it is a laughingstock trying to argue in substance about the Health Care Bill. You get someone who can't stop repeating what Fox News told them and that is it

Posted by: Bious | February 2, 2011 10:39 PM | Report abuse

--*[I]f a person loses a finger because he did not have the money to get it sewed back on, he is not choosing that outcome. He is forced into it by the market. We don't need a single person doing it to him, to be coercion. We all have coerced him*--

Baloney. You ignore all the choices the individual made that led him to the place where he lost the finger (and the context in which he did so.) And not one of *us* was there to do the coercing that you nevertheless accuse us of. You are prattling fraud.

Posted by: msoja | February 2, 2011 11:31 PM | Report abuse

"In reality, if a person loses a finger because he did not have the money to get it sewed back on, he is not choosing that outcome. He is forced into it by the market. We don't need a single person doing it to him, to be coercion."

Mr. Market is running around cutting off fingers? Yikes!

The mere fact that a desirable good or service exists does not imply that failure to receive that good or service is the result of coercion.

You may not choose a bad outcome, but that bad outcome does not imply coercion. If I'm a deep in debt and about to lose my home, your failure to cover my debts is not coercion - it doesn't matter in the slightest whether or not I'd prefer not to lose my home.

Your notion of positive liberty requires that this man has a right to having his finger saved via health care providers. What if those able to provide that health care are not willing to help him, for whatever reason? Surely, if health care is his right, our fellow is ethnically justified in drawing a weapon with his free hand, pointing it at a doctor, and demanding action, for his right to health care is being violated. The doctor has no right to say no - he must work, and he must work with or without compensation. Health care is the right, not the life or liberty of the doctor. In fact, if our doctor does not comply, why would it be unethical for this injured man to pull the trigger? Health care is his right - and if none of the doctors wish to fix his finger then perhaps the crumpled bloody corpse of one might motivate another to do the "right thing".

If someone were to attack my person or property, or attempt to enslave me, it would be ethical for me to respond with violence against such an attack against my rights as a human being.

If health care is a right, then it follows that this man is justified in seeing to it that this right isn't violated, and it would be ethical for him to use violent force against a doctor who would deny him his right to care.

However, this would be in direct conflict with the doctor's right to his liberty, or the right to property of the person who must pay the doctor on his behalf.

As negative and positive rights conflict, one must be invalid. Do people have a right to their own lives, or do they lack such a right while somehow having a right to various goods and services?

"Further still, positive and negative liberty are not always incompatible, and the statement "one cannot accept both" appears to be a direct assertion of dogmatism, and based upon the parsing of definitions."

They might not always be incompatible, in the sense that a doctor might voluntarily provide charity care to your injured man. In this case, neither positive or negative liberty is infringed.

However, positive rights impose obligations on others to which they did not consent - the enforcement of a positive right requires one man to coerce another. Positive rights can only be *enforced* by infringing on negative rights.

Posted by: justin84 | February 3, 2011 12:22 AM | Report abuse

Wrong on at least three counts. You can't show that the moments leading to the loss of finger were all willful exercises of liberty, and also, science usually doesn't care much about how it happened, in order to sew it back on. That's just illogic, but your malfeasance is in the definition that one of us has to be there to deny the victim healthcare, or else we are free of blame even though we suspect that there are changes to the system that might end this bad outcome.

Posted by: Lee_A_Arnold | February 3, 2011 12:31 AM | Report abuse

justin84: "'So it is all semantics to begin with.'

"No, it's really not."

Yes, it really is. I don't think anyone disputes that it would be perfectly constitutional for Congress to raise everyone's taxes by the no-insurance penalty, and then rebate that amount for those who have insurance. After all, Congress provides tax credits and deductions for all sorts of things. But the result would be exactly the same as imposing a tax penalty for not having insurance. Is it really possible that one procedure is constitutional and the other not when the outcome is the same, the incentives are the same, and any "infringement of liberty" would be the same?

If those systems rise or fall together, then opposition to the mandate isn't really because of constitutional concerns. It's because some people just don't like the legislation for policy or ideological reasons.

Posted by: dasimon | February 3, 2011 12:53 AM | Report abuse

--*Wrong on at least three counts.*--

No, justin84 is entirely correct, and your cramped and stunted facsimile of a rebuttal, Lee, is ridiculous. There is no right to force a service or asset from another, even in the realm of health care. You cannot walk into a pharmacy and demand medicine, no matter how badly you need it. At best you can appeal to a doctor's Hippocratic Oath, but you are just playing to a man's conscience there, and still have no rights. You do not have a right to things out of another man's pocket. If you did, that person would have similar rights with respect to you, and I assure you, you don't want that.

ps. Nice comment, justin84.

Posted by: msoja | February 3, 2011 12:59 AM | Report abuse

"Yes, it really is."

The issue being discussed was not whether or not the individual mandate is constitutional, dasimon. I don't care whether or not it is.

The issue was the fraudulent concept called positive liberty. It is a gateway to unlimited government and the destruction of real liberty.

Posted by: justin84 | February 3, 2011 12:59 AM | Report abuse

"There is no right to force a service or asset from another, even in the realm of health care. You cannot walk into a pharmacy and demand medicine, no matter how badly you need it."

You can walk into an emergency room and demand to be treated. There is not only a right, it is already law.

Posted by: Lee_A_Arnold | February 3, 2011 1:13 AM | Report abuse

Justin84: "If I'm a deep in debt and about to lose my home, your failure to cover my debts is not coercion"

If you lose your home, you can buy another. You cannot get a new finger later. Your definition of coercion is arbitrary.

Posted by: Lee_A_Arnold | February 3, 2011 1:15 AM | Report abuse

"You can walk into an emergency room and demand to be treated. There is not only a right, it is already law."

In certain jurisdictions back in 1860, a white man could purchase a black man - it wasn't only a right, it was a law!

Posted by: justin84 | February 3, 2011 1:25 AM | Report abuse

--*You can walk into an emergency room and demand to be treated. There is not only a right, it is already law.*--

It is not a right. It is a law. There is a distinction. There is also the Hippocratic Oath.

If there were but one doctor in the country, he could not be compelled to treat everyone, yet your nonsense implies otherwise.

Posted by: msoja | February 3, 2011 1:36 AM | Report abuse

As predicted, your argument has started to fray upon its nonsensical foundation.

Posted by: Lee_A_Arnold | February 3, 2011 1:37 AM | Report abuse

Oh it's a right. And since there isn't only one doctor in the country, it's not a problem.

Posted by: Lee_A_Arnold | February 3, 2011 1:40 AM | Report abuse

"If you lose your home, you can buy another."

I have no money, so I cannot buy another. You must buy it for me. I have a right to shelter.

"You cannot get a new finger later. Your definition of coercion is arbitrary."

No it is not. Your definition of coercion is arbitrary. By your definition, people are entitled to whatever they might claim to need, or else somehow, someone is coercing them. Or maybe they are being coerced by life itself, who knows. That already indefinable entitlement must also change as time, technology, location and society changes.

I cannot coerce the fingerless man by wishing him well and leaving him to his own devices. I am not trying to force him to do anything. His situation might be awful, but no other individual was party to creating that situation. However, he wishes me to sew his finger back on, regardless of my preference not to do so. He is now using government power in order to force me to do so. THAT is coercion.

Posted by: justin84 | February 3, 2011 1:52 AM | Report abuse

"Oh it's a right. And since there isn't only one doctor in the country, it's not a problem."

It is a legal right, not a natural one. There's a big difference.

Posted by: justin84 | February 3, 2011 2:12 AM | Report abuse

--*Oh it's a right.*--

Your saying so doesn't make it true.

--*And since there isn't only one doctor in the country, it's not a problem.*--

What incentive do people have to become doctors in your world, when receipt of their license obligates them to unending calls for the right to be treated?

Posted by: msoja | February 3, 2011 2:14 AM | Report abuse

"I'd like to see an interview with some of the people who don't have health insurance, but have the money for it, and still don't want it.

Who are these people?

Posted by: JkR-"

Some of these would be people who are young and healthy now and would rather put that money toward something else, b/c they think they don't need health insurance. Someone else on here also mentioned resenting the fact that young healthy people might somehow be subsidizing older and sicker people. But that assumes that young healthy people will always be young and healthy--or always healthy while they are young.

Of course, any of these young people at any time could be injured in an accident, get leukemia, have a heart attack caused by a previously unknown congenital defect, require hospitalization due to complications from the flu, be shot in a random act of violence, etc etc.

At that point, they could spend a heck of a lot more money on out-of-pocket medical care than they would have on premiums, or on any penalty they might pay for not buying an insurance plan. And if they could not afford to pay their hospital bills, labs, medications, surgeries, re-hab fees etc.? Well, then they could go to the emergency room or possibly become bankrupt and disabled enough to qualify for Medicaid, and have the rest of us pay. This would be better for everyone how?

In any case, this is why we call insurance "insurance"--you pay into it in case you need it, to insure that you will be taken care of. It is risk-based, and usage will not be the same for everyone; some people over time may find that they need to call upon it very little, some more than they perhaps expected, and others would buy it knowing they wouldn't survive without it. However, due to the relative fragility of human health the odds are near 100% that sooner or later everyone will need medical care. You would think that many of the people now opposed to this plan would get behind the notion of people taking personal responsibility, and not expecting society to bail them out, since they talk about that all the time. Ahem.

Posted by: bpaljr | February 3, 2011 2:16 AM | Report abuse

Actually, Mr. Klein, there is a big difference between a "tax" and a "tax penalty". Congress has full Constitutional authority to impose the former; the latter, it does not. In fact, all courts addressing the issue so far have found that this "penalty" is definitely not a tax and does not fall within the Constitutional authority given to Congress to "tax".

Here's a brief primer on the taxing power: Congress is essentially allowed to tax as much of your income as it wants, and then it can give you money back for whatever reason it wants. For example, Congress has the full authority to tax your income and give you money back (or deduct it from your tax bill) if you buy a house, a hybrid car, or have a child. Congress cannot, however, charge you extra money if you choose not to buy a house, a hybrid car, or have a child, and it certainly can't charge you a per-person fee without "apportioning" it among all the states (so, e.g., people in California would pay less per person than people in Rhode Island).

Functionally, those two processes are identical, but there is a big formal difference; without form, law becomes meaningless (form is why we write it down, after all) so one must draw the line somewhere, and it seems that in this case, Congress crossed it.

As you mention, "taxes" are politically unpopular, which is what prevents Congress from levying a 100% income tax and capriciously rewarding behavior that it deems desirable. But there is an easy fix in this case: Just levy an across-the-board 2.5% income tax (the max. amount of the current penalty), and issue a full refundable credit to everyone, less the "penalty" amount for people who choose not to buy qualifying insurance (people who can't afford it are already exempted, to some extent). Yes, it's a complete shell game. Yes, in the end, there is no financial difference to anyone between this and the "penalty", but it circumvents the Constitutional issues. Does it avert a political firestorm? Not so much....

My full take on this: http://bit.ly/hTQ9ZX

(BTW, apologies for my User ID. Rather than an error message if a User ID is in use, the system simply returns you to the page if a name is taken without any message at all; it took me about 8 tries to register, so I was a bit frustrated. But I stand by my statement: Error messages are trivial to code in, and I can't now change my User ID without deleting my account via an email to WP customer service, so we're all stuck with it until it's possible to change it without deleting my account.)

Posted by: YourStupidRegistrationSystemIsCrap | February 3, 2011 2:19 AM | Report abuse

@michaelh81 - The cost for uncompensated that you quoted from the NY times article was not complete. It didn't look at the total cost of care that was given. The Kaiser foundation did more through analysis on the cost of uncompensated care. The key facts from their study are that the uninsured received around $86 billion in total care. They pay only $30 billion of those bills leaving $56 in uncompensated care. The federal government and states pay $43 billion of that cost leaving $13 billion that is passed on to the consumer in terms of higher health insurance premiums. This $56 billion in total uncompensated care is only for 2008 and will continue to exponential increase every year as higher premiums cause more and more people not to have insurance. Also this study did not look at the under insured but just the uninsured. I think that is they were discrepancies in both of our previous numbers.

http://www.kff.org/uninsured/upload/7810.pdf#page=5

Posted by: soscane | February 3, 2011 7:56 AM | Report abuse

Justin84: "...You must buy it for me. I have a right to shelter.... By your definition, people are entitled to whatever they might claim to need..."

Certainly not and I made no such definition. I think that you are entitled to sustenance, healthcare, and a shelter. Although on some cold nights, you will have trouble finding a homeless shelter with a space for you. But after that, you are on your own.

"It is a legal right, not a natural one. There's a big difference."

Another definition, interesting in intellectual history but without merit in this debate. Although the Creator endowed "pursuit of happiness"-- you need to be healthy to do that; you shall have to define that one away, too.

Posted by: Lee_A_Arnold | February 3, 2011 9:55 AM | Report abuse

Msoja: "Your saying so doesn't make it true."

Exactly, it's arbitrary. The only difference is, I already know the "liberty" argument is arbitrary, (as Ezra points out that the Republicans do too), and so I never deploy it in this debate.

Around about the time this argument starts to fray, the anti-reformers will start to slide in their economic arguments...

"What incentive do people have to become doctors in your world..."

As predicted. The difference here is that, whereas the liberty argument is arbitrary, in the economic argument the anti-reformers lose decisively.

Posted by: Lee_A_Arnold | February 3, 2011 9:58 AM | Report abuse

Lee A Arnold,
What's with the pessimism of progressives? I thought you were hopeful of a new world order where all life's problems were answered by the brilliance of the elite. So why then the pessimistic claim that one must be healthy to be free to pursue happiness? Surely happiness can be found in all situations and health isn't a condition of will.

Posted by: cprferry | February 3, 2011 11:19 AM | Report abuse

Lee A Arnold,
What's with the pessimism of progressives? I thought you were hopeful of a new world order where all life's problems were answered by the brilliance of the elite. So why then the pessimistic claim that one must be healthy to be free to pursue happiness? Surely happiness can be found in all situations and health isn't a condition of will.

Posted by: cprferry | February 3, 2011 11:21 AM | Report abuse

Lee A Arnold,
What's with the pessimism of progressives? I thought you were hopeful of a new world order where all life's problems were answered by the brilliance of the elite. So why then the pessimistic claim that one must be healthy to be free to pursue happiness? Surely happiness can be found in all situations and health isn't a condition of will.

Posted by: cprferry | February 3, 2011 11:22 AM | Report abuse

Cprferry: " I thought you were hopeful of a new world order where all life's problems were answered by the brilliance of the elite."

You are confusing me with someone else.

Within about 10-15 years, though, you are going to be able to GROW a new finger.

I wonder how many people would agree with you that health is not a condition of happiness. Vanishingly few, I imagine.

Posted by: Lee_A_Arnold | February 3, 2011 11:32 AM | Report abuse

IMO everyone entering this ACA debate must state their particulars so we can judge motives. I'm 62, male, good health and good insurance. I favor the public option because it is the simplest fulfilment of an unmet human need that the market has failed to meet. The reasons not to do it but are just resistance to change.

Posted by: BertEisenstein | February 3, 2011 11:50 AM | Report abuse

YourStupidRegistrationSystemIsCrap: "Functionally, those two processes are identical, but there is a big formal difference; without form, law becomes meaningless (form is why we write it down, after all) so one must draw the line somewhere, and it seems that in this case, Congress crossed it."

No, I think the opposite is the case: if all we pay attention to is form instead of substance, then law becomes meaningless.

Some people have made a point that Congress didn't call the mandate penalty a tax, so therefore it doesn't fall under Congress's taxing authority. But if Congress called the provision a fish, that wouldn't make it an unconstitutional fish. I believe there is Supreme Court precedent that it will look at what a provision actually does to categorize it, not what it's called. And that makes sense, otherwise prohibitions could be circumvented just by mere linguistics. Most legal questions do not turn on "magic words."

So I don't agree with the assertion that tax-and-rebate is constitutional, but a tax penalty is not when they achieve the exact same result. I don't see why form should matter, and I don't think it does.

Posted by: dasimon | February 3, 2011 5:21 PM | Report abuse

justin84: "The issue was the fraudulent concept called positive liberty. It is a gateway to unlimited government and the destruction of real liberty."

I have no idea what you're talking about. There are all sorts of "liberties" that have been taken away from me without my consent, but that's how things work in a democracy. I didn't consent to stoplights that serve no real purpose at 3 in the morning, but I am "coerced" by law to comply. I didn't vote to have my tax money spent on programs I don't approve of, and yet I have to to pay my taxes anyway. (If my assent is virtual through my representatives, suppose I didn't vote for them either.)

If the fear is the specter of "unlimited government," that specter already exists. They're called state governments, which can do anything not expressly prohibited by the US or state constitution, and yet we consider ourselves to live in a free society. As we know, Massachusetts already has a health insurance mandate. But that's because most people there apparently thought it was a good idea. (Plus there are "liberty" arguments for a mandate: that people will have the liberty to change jobs or start their own businesses without the fear of losing their insurance, or the liberty of those with preexisting conditions to get insurance in the first place.)

Sometimes we have to rely on the democratic process to safeguard things we think are important. I'm not worried about a broccoli mandate; it's theoretically possible, but no state has imposed one so far, and I doubt one will--because our government is accountable to the people, sometimes people have common sense, and sometimes democracy actually works.

Eternal vigilance, as they say.

Posted by: dasimon | February 3, 2011 5:37 PM | Report abuse

If I'm going to trust an agent to have nearly unlimited influence in the health care sector and that forces me into their system then, yes, I do ask they display a certain level of competence and trustworthiness beforehand.

If they have to resort to calling a fee a tax and a tax a fee or buying off legislators or forcing a vote before legislators meet again with their constituents or refuse to read the bill or defend it then, yeah, they have failed to display the competence and trustworthiness they're claiming in their responsibilities.

You can tell me all day how long how great your plan is, but until your character displays some credibility I ain't buying any of it.

At least with insurers we have the possibility to appeal decisions and change providers. There's no escaping the destruction the new government regulations present

Posted by: cprferry | February 3, 2011 5:45 PM | Report abuse

"Certainly not and I made no such definition."

Yes, you did make that definition. I'll quote you:

"In reality, if a person [has no shelter] because he did not have the money to [pay for shelter], he is not choosing that outcome. He is forced into it by the market. We don't need a single person doing it to him, to be coercion. We all have coerced him, by the general institutional arrangements prevailing at the time."

You (and everyone) coerced me by not providing me with what I claim to need. Any outcome I don't like which others could have prevented is coercion, per your definition.

So must either you pay for my shelter, or admit that I have no right to shelter or any other thing which might improve my situation.

"I think that you are entitled to sustenance, healthcare, and a shelter. Although on some cold nights, you will have trouble finding a homeless shelter with a space for you. But after that, you are on your own."

What sort of entitlement do I have if I'm on my own? The answer is that I have no entitlement - all I have is the good will of others willing to help me out. If they choose not to do so, I cannot attack them and force their assistance. I cannot steal their wallet and use their money to pay for a hotel room - I'm on my own.

"Another definition, interesting in intellectual history but without merit in this debate."

Of course it is with merit.

Do you have the right to your life, liberty and property? Does everyone else?

Then no one has the right to any specific positive action - as that directly contradicts at least one of those three above. If a person has a right to health care, that right is empty unless they may morally threaten your life, restrict your liberty, or take your property in order to obtain what is rightfully theirs.

Your only way out is to say that there is no right to one's life, liberty and property - but somehow I doubt your actions will conform to that claimed belief if another attempts to attack, kidnap, or steal from you. Furthermore, if there is no right to one's life, its an awfully large stretch to say that despite that, one has a right to health care services.

Posted by: justin84 | February 3, 2011 7:16 PM | Report abuse

You are certainly coerced if you lose your house, the question is whether in this instance we will care. Because "shelter" and "house" are two different things. You have a right to shelter, and we should pay for it if you cannot. You do not have a right to your house if you lose it in the market. What you want is not always what you need. You have a right to a cot in a homeless shelter. You have a right to get your finger sewn back on. "that right is empty unless they may morally threaten your life, [etc]" -- what nonsense.

Posted by: Lee_A_Arnold | February 3, 2011 9:03 PM | Report abuse

If the point wasn't clear enough: I made NO such definition. You wrote, "By your definition, people are entitled to whatever they might claim to need..." But that would be asinine. People claim to need all sorts of things. I'm pretty sure, however, that they really do need their fingers sewed back on.

Posted by: Lee_A_Arnold | February 3, 2011 9:24 PM | Report abuse

Many existing laws and regulations apply specifically to pregnant women. Several provisions of the Affordable Care Act offer new benefits for expecting mothers. Search online for "Wise Health Insurance" if you need affordable insurance for yourself or your wife.

Posted by: dichack | February 4, 2011 1:36 AM | Report abuse

It's meaningless that Klein can cite a number of Republicans in Congress whom he claims supported the mandate. That doesn't make me think it's Constitutional. I hardly think it's a "technicality" either. 120 years ago no Congress would have even considered Obamacare, Social Security, or Medicare because they're all obviously unconstitutional. We don't need to further erode the limits on government's power by saying, in effect, that - since he government can already tax everyone to provide a benefit to everyone, then the government should be able to wallop you with a tax if you don't behave they want you to behave (since that provides you with a benefit).

Posted by: hroark314 | February 4, 2011 6:50 AM | Report abuse

Randy Barnett takes issue with you over at Volokh Conspiracy. Of course, he is using the fear of the domino effect. He probably supported the Vietnam war in the same way.

Of course he has blocked comments, the wimp.

Posted by: sailor0245 | February 4, 2011 5:01 PM | Report abuse

hroark314: "120 years ago no Congress would have even considered Obamacare, Social Security, or Medicare because they're all obviously unconstitutional."

Yes, it's so obvious that most legal experts (and two federal judges) think otherwise.

Look, I'm not saying there's no argument on the other side, I just think they're wrong. So please let's stop with the "obvious" characterization and treat opposing arguments with respect.

Posted by: dasimon | February 4, 2011 7:05 PM | Report abuse

cprferry: "If they have to resort to calling a fee a tax and a tax a fee or buying off legislators..."

Welcome to Politics 101. Laws have been passed this way for centuries.

"...or forcing a vote before legislators meet again with their constituents or refuse to read the bill or defend it..."

Please don't pretend that those who voted for the bill didn't know what they were voting for. I've talked with many of these legislators; they knew what was in the bill. And just about all who voted for it also defended it and met with their constituents about it.

"At least with insurers we have the possibility to appeal decisions and change providers. There's no escaping the destruction the new government regulations present"

Sure there is. It's called elections. You can vote for people who will change the law or override erroneous or destructive regulations. Happens all the time.

Posted by: dasimon | February 4, 2011 7:23 PM | Report abuse

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