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.

Continue ReadingThe Individual Mandate: A Rejoinder

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.

Continue ReadingWhy the Supreme Court Should Uphold the Individual Mandate

Baldwin Stakes Out Health, Tax Positions for Fall Senate Campaign

Two major policy differences between Tammy Baldwin, the only major Democratic candidate for the open US Senate seat, and any of the Republican candidates were clear when Baldwin sat down with Mike Gousha in an “On the Issues” session at Eckstein Hall this week. Both issues are almost certain to be in the spotlight when the race to succeed Democrat Herb Kohl heats up in several months. The two:

Health insurance. Baldwin, who represents south central Wisconsin, including Dane County, in the House of Representatives, supports the Affordable Care Act, while her opponents all want to see the law they call “Obamacare” repealed or overturned by the US Supreme Court. Baldwin told Gousha, the Law School’s distinguished fellow in law and public policy, “It’s not perfect, but it’s a step in the right direction that will lead to far greater coverage and, I hope, drive incredible improvements in quality, too.” She said that the plan for overhauling Medicare proposed by Republican Rep. Paul Ryan would be “a catastrophe” because it would eliminate guaranteed coverage for senior citizens. She said that as a child who was raised by her maternal grandparents and who had a major childhood illness that was not covered by their insurance, she learned early on the value of programs such as Medicare, Medicaid, and Social Security.

Tax reform, including the “Buffet Rule.” Baldwin said she was one of the first members of Congress to propose passage of what has come to be known as the “Buffet Rule” which would require people who make more than $1 million a year to be taxed at at least a 30% rate. The term comes from statements from billionaire Warren Buffet that he pays a smaller percentage of his income in taxes than his secretary does. The proposal has become a hot issue, with President Barack Obama campaigning for it in recent days. Baldwin said she wanted members of Congress to take a straight up or down vote on whether they support the idea.

Asked by Gousha how she responds to those who say she is one of the most liberal members of Congress, Baldwin said she would describe herself as a fighter who is not afraid to take on big, powerful interests. She said she is an advocate for the middle class and for those with lower income.

As for how to cut the deficit, she said she advocated steps such as ending the American military involvement in Afghanistan, which would save large amounts of money, as well as tax reform that goes beyond the Buffet Rule proposal.

Baldwin appears to be on her way to an effectively uncontested path to getting on the November ballot. On the Republican side, four candidates are aiming to be on the a primary ballot in August. They are former Gov. Tommy G. Thompson, former Rep. Mark Neumann, State Assembly Speaker Jeff Fitzgerald, and businessman Eric Hovde.

Baldwin said she knows Thompson the best of the four – she served in the Legislature while he was governor –and worked well with him in those years. But, she said, she sees him now moving to the right in his positions. “The gulf is getting wider” between her and candidates such as Thompson, she said.

In 2010, incumbent Democratic Sen. Russ Feingold was defeated by Republican Ron Johnson. Asked by Gousha what that said about her chances in 2012, Baldwin said she thinks the electorate in 2012 is going to be very different than the electorate two years ago.

Video of the one-hour session may be viewed by clicking here.

Continue ReadingBaldwin Stakes Out Health, Tax Positions for Fall Senate Campaign