• Medicare Part A as an individual mandate

    Opponents of the individual mandate agree with Judge Hudson that the Commerce Clause does not extend to regulating inactivity:

    “But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” Commonwealth ex rel. Cuccinelli v. Sebelius, — F.Supp.2d —- (2010), at *12.

    But I can think of at least 2 examples of Congress requiring all Americans to purchase insurance:  Social Security and Medicare Part A.  The premiums are collected on wages in the Internal Revenue Code for two mandatory social insurance programs:

    Section 3101.  Rate of Tax.

    (a)   Old-Age, Survivors, and Disability Insurance.—In addition to the other taxes, there is hereby imposed on the income of every individual a tax equal to the following percentages of the wages (as defined in section 3121(a)) received by him with respect to employment (as defined in section 3121(b))…

    (b)   Hospital Insurance.—In addition to the tax imposed by the preceding subsection, there is hereby imposed on the income of every individual a tax equal to the following percentages of the wages (as defined in section 3121(a)) received by him with respect to employment (as defined in section 3121(b)) –[1]

    These federal social insurance programs ignore the activity/inactivity distinction  – try failing to pay your Social Security or Medicare Part A taxes and see what happens next.  You will be compelled to involuntarily enter the stream of commerce and purchase these two insurance products from the federal government.

    Orin Kerr raises related questions in the context of child pornography laws.

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    [1]  The federal government also imposes taxes on employers at 26 USC § 1401 for Social Security and Medicare, and Federal Unemployment Tax under § 3310.

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    • Kevin
      Is there a distinction however between SS and Part A given they are a tax, and the semantics of the individual mandate, ie, it is a penalty if you opt out (not a tax), or a premium with a 3rd party if you play?

      This seems to be an operative issue which you dont mention above.

      Brad

    • @ Brad F – my point was simply that the commerce clause inactivity argument cannot be dispositive because it would have blocked SS and Medicare Part A.

      Whether the mandate is a proper exercise of the taxing power is another matter, discussed in a prior post:

      http://theincidentaleconomist.com/wordpress/the-mandatetax-issue-4th-circuit-preview/

    • The activity/inactivity distinction relating to the Commerce Clause is only relevant if the individual mandate is not justified by the Tax and Spending Clause. SS and Medicare are generally accepted to be constitutional under the Tax and Spending Clause. On the other hand, two federal judges (Hudson in Virginia and Vinson in Florida) have now ruled that the individual mandate is not per se a tax, and therefore the Tax and Spending Clause does not apply. To my knowledge, no federal judge has upheld the individual mandate specifically under the Tax and Spending Clause. For this reason, I believe your comparison falls short.

    • @ Scott – of course you are right, and that is my primary point on the mandate these past few posts — if it is a tax then it is clearly constitutional and the activity/inactivity distinction doesn’t apply.

    • So, if the solution to the “health care crisis ” is a mandate, then wouldn’t our climate change “crisis” also be solved by mandating everyone own an electric car? Wouldn’t our homeless “crisis” be solved by mandating everyone own a home or place of residence, as Senator Obama debated against Senator Clinton in 2008.
      This is not a slippery slope but a steep cliff we are about to fall off. If the mandate stands as Constitutional, president is set for the federal government to mandate to all citizens to purchase anything the federal government demands us to have. That is not Liberty.
      It also could be used to mandate all gun owners to keep any weapon at a centralized location for “public safety”.

      What a sad sad state we are coming to.

      Peace be with you