The Individual Mandate: A Rejoinder

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

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Why the Supreme Court Should Uphold the Individual Mandate

This afternoon, I participated in a debate with Rick Esenberg at the Marquette University Law School.  The debate was co-sponsored by the American Constitution Society and the Federalist Society.  I was asked to defend the constitutionality of the individual mandate imposed by the Affordable Care Act.  What follows are my prepared remarks.

Historians tell us that the connection between access to health insurance and employment was an accident. During World War II, wage and price controls prevented employers from increasing cash compensation for their workers. Employers wishing to recruit workers began to offer subsidized health insurance benefits as a way of avoiding this freeze on wages.

This is not a gift to workers from employers. We all pay for our health insurance with our labor. In return for our labor, we receive a combination of cash, employer provided benefits and non-cash prerequisites. The amount that employers pay towards our health insurance premiums is part of our income, which is why we are taxed on our employer-provided insurance above a certain level. The government encourages employers to offer health insurance benefits by allowing the employer to deduct these expenses as a business expense. About 60% of us receive health insurance through our employer.

The elderly and the disabled are not physically capable of working. Employer-based health insurance does not work for them. They receive their health insurance through Medicare. Participants pay certain deductibles and co-payments, but the bulk of the cost is imposed on the rest of us in the form of a payroll tax and the government then pays medical providers.

So our health insurance system has become tied to employment. As the costs of health care rise, it is increasingly difficult for middle and lower income Americans to afford health insurance unless they get it through an employer. This is because, as I mentioned, an employer will partially subsidize the cost of the premium as a component of total compensation. In addition, an employer can offer access to a plan that includes many other workers, thus broadening the risk pool and lowering the overall premium for each worker. An individual who seeks to purchase health insurance on their own gets neither of these two advantages. As health care costs continue to rise (an annual increase of about 8% in recent years), this cost differential becomes more significant.

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Signing a Recall Petition Does Not Require Judicial Recusal

We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so.

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