Saturday, March 12, 2011

Legislative History and Individual Mandate

Interesting post from Jim Hufford on the use of legislative history in court cases, here in determining whether the individual mandate in the Affordable Care Act is a tax or not, which is a relevant point in determining the mandate's constitutionality. The irony is that during the political debate, supporters argued that a penalty for not complying was not a tax (it is a penalty), and opponents said that it was a tax. Now in the court proceedings, the arguments of the parties have roughly switched.

Update 5:20pm March 12: Hufford with a detailed follow up post that shows that what you paid if you did not comply with the individual mandate was called a tax by all initial bills save the Senate finance committee bill. Not sure if it matters to this discussion that it was the Senate HELP Committee bill that became the Senate bill which was then passed as-is by the House with a reconciliation bill that came a few days later.

In policy terms, the question is whether we will use public policy to expand insurance coverage. Any policy provision to expand insurance coverage is a mandate of some type. The choices are:
  • government insurance like Medicaid, Medicare or a new program. But, imposing a tax and then providing coverage is a type of mandate.
  • Employer mandate
  • Individual mandate of some type. I say some type because in addition to the 'you must buy or pay a penalty/tax/contribution' (I don't care what you call it) there are also a variety of 'soft mandates' that are available in which you default people into insurance and let them opt out. It is unclear how well they would work.
Without a mandate of some type, the status quo of our health system appears likely to remain 15-18% uninsured depending on the economy, with the share of the insured being covered by government insurance increasing over time simply because they baby boomers will move into Medicare eligibility. More will be covered by Medicaid under the status quo in poor economic times, less in better times. Currently there are about 160 Million folks with private insurance and around 110-15 Million with some form of government provided health insurance depending on how you categorize Military dependents and a few other programs.

The real question is whether moving toward providing health insurance of some sort to all Americans is a goal that is worthy of public policy action or not? If yes, it will take a mandate of some sort. We need to decide on this basic question, accept the consequences of the decision, and move ahead.

update: corrected error as shown by Jim Hufford's was Senate HELP committee bill that didn't refer to it as a tax, not finance committee bill.


  1. Small correction: it was the Senate HELP bill that didn't explicitly call it a tax. But I'm not sure how much it matters, either. PPACA was the name given to the "merged bill" that Harry Reid & other Senate Dem leaders cobbled from the HELP bill and Finance bill. The bills were all obviously related, but had different names, numbers, sponsors, etc. There aren't really any rules about how courts handle this sort of the contents of earlier bills might "count" for something, or might not.

    As for needing to decide the policy question, I want to say that we did decide—we elected a president and Congress, got the votes, and passed the ACA. It's just that we might not have used the right words when we ("we") wrote the ACA.

    But I suppose even that comes down to the fact that we were not quite sure of ourselves--by which I mean Senate Democratic leaders were not quite sure America was with them. If they had been more sure of the politics, they would surely have had the good sense to ground the mandate in both the taxing power and the commerce power.

  2. Good job. Thanks for sharing such a good post.