The Individual Mandate: Why Precedent Matters

U.S. Supreme Court no. 6393 - photo by Eric E Johnson

Is there a core Republican conviction stronger than the conviction to defeat President Obama? In other words, are Republicans willing to reverse previously held positions if it means defeating Obama or challenging the achievements of the Obama administration?

I believe there are a number of issues where Republicans have reversed course from previously held positions because Obama also embraced these positions. For this article I will focus on just one, the health care individual mandate.

What Is The Individual Mandate?

The health care individual mandate is a key part of the Patient Protection and Affordable Care Act of 2010, the health care reform championed by President Obama and signed into law on March 23, 2010. The individual mandate requires all citizens to buy health care insurance or face a fine, fee or tax depending on your perspective. The intention is to have as many people insured as possible to reduce the high costs associated with providing health care to the uninsured whether it be for lack of preventive care or trips to the emergency room. The larger the pool of insured citizens the cheaper the care per person. By the way, this same benefit (large insurance pool) is true of single payer health care systems but I’ll save that topic for another article.

Since its passage, the health care law has faced continuous attacks and lawsuits from Republicans and conservatives who believe the law is unconstitutional due to the individual mandate. A small detail Republicans would like to leave in the past is the fact that the individual mandate was originally a Republican idea. Now that the individual mandate is part of the single biggest achievement of Obama’s first term, the health care law, Republicans are no longer in favor of it.

On the surface it makes sense that Republicans are against the individual mandate because it represents – to them – the overreach of government. The argument goes — if government can compel you to buy health care insurance what else might it compel you to do? This of course is a classic ‘slippery slope’ argument. It’s like the slippery slope arguments you might also hear from Republicans on any number of issues, but most prominently, same-sex marriage. As with any slippery slope argument there is no need for facts or evidence. All that matters is the ability to rally support for or against something based on the fears of individuals.

My view is that Republicans should embrace the individual mandate because it represents personal responsibility, which Republicans love to talk about when it comes to any number of perceived societal ills. Republicans should embrace the individual mandate because it ensures everyone pays something – haven’t you heard Republicans say this a lot? – and that nobody gets a free ride – again, sound familiar?

The result of 18 months of litigation surrounding the health care law’s constitutionality is a pending Supreme Court ruling in the summer of 2012.

Why Precedent Matters

I’m not a lawyer or an expert on the constitution but I do know one thing: in law, precedent matters. Let’s use federal income tax as an example since that is, as I will argue, exactly what the individual mandate “fee” is, a tax on your income. Whether or not it was intended by the founding fathers to allow congress to levy an income tax on all citizens is a matter of debate. Whether or not it is constitutional was at one time up for debate and it resulted in the 16th amendment which states:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The 16th amendment was ratified in 1913. We have nearly 100 years of precedent that states congress can indeed levy an income tax on citizens.

But I hear you asking — Isn’t the individual mandate a fine or fee? I ask you, how will it be collected? If a citizen chooses not to buy health care insurance this “fee” will be collected via the IRS as part of a citizen’s income tax return. That means this “fee” is really just an additional tax levied on income.

Now I hear you saying — Isn’t it discriminatory to levy a tax on just those citizens that choose not to buy health care insurance? My response to that is to point out the mortgage interest deduction or any other deductions that some can take advantage of but others cannot. If you own a home and have a mortgage you can effectively cut your tax burden by reporting the interest you paid on your mortgage which lowers the amount of income subject to income tax. If you rent an apartment you are out of luck. I ask you how is this any different? You aren’t actually required to buy health care insurance any more than you are required to buy a home but in each case you can cut your effective tax burden at your discretion. I realize that the individual mandate is additive while the mortgage insurance deduction is reductive, but I don’t believe that distinction is enough to rule the individual mandate as unconstitutional.

It turns out this is just a game of semantics. The “tax” paid due to the individual mandate is no different from the increased tax burden of those that didn’t buy a home with a mortgage. The result is that some pay more tax and some don’t. This dynamic already exists in our current tax code which is law and has precedent. I do not see how the Supreme Court will be able to rule the individual mandate as unconstitutional without unraveling the nearly 100 year precedent of the 16th amendment and U.S. tax code.

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