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  • John Stokes 3:48 pm on April 17, 2012 Permalink | Reply
    Tags: constitutional law, health care, healthcare reform, language of politics, Obamacare, ,   

    How the language of politics could doom Obamacare 

    For politicians there are lots of topics that are simply too hot to handle. Social security reform, abortion, gay marriage — these are all crucial issues, but many politicians hate taking strong positions on them. It’s not hard to see why: Do so, and there goes the vote of an entire demographic.

    But if there’s one word, particularly in recent years, that is anathema to more than just one or another segment of the voting public, it’s the “T” word: taxes. At all costs, don’t tell people you’re hitting them with new taxes. Especially if you’re already trying to pass a controversial new mega-suite of laws like . . . say . . . Obamacare.

    That’s precisely what Obama and the Democrats did with their healthcare reform package. They took great pains to tell people that reform did not mean new taxes.

    One of the centerpieces of the bill is what the government calls the “minimum care provision.”  Its opponents prefer to call it the “individual mandate.” Whatever you want to call it, it means (almost) everybody must obtain at least some health insurance by 2014. The government claims this is necessary to keep premiums down once insurers are forced to cover people they otherwise would not.

    So far so good. But once 2014 rolls around, anybody that fails to get minimum coverage will be taxed . . . er, “penalized” . . . to cover their share of the expense. Here’s where things get tricky: Is this sanction a tax (gasp!)? Or is it a penalty? Well, in the law itself, Congress prefers to call it a penalty. This “penalty,” though, is assessed on a person’s tax returns, and the provision is even part of the tax code. It bears all the markers of a tax on those without minimum coverage, but, presumably for political reasons, Congress chose to call it a penalty instead.

    What they perhaps didn’t realize was that their refusal to call the tax a tax might cause problems for the law’s constitutionality.

    Congress has a broad authority under the Constitution to raise taxes. It uses this authority all the time to make people pay for things they might not otherwise want. Whether it be farm subsidies, alternative energy, or national defense, Congress’s tax power let’s them force us to buy things, and there’s nothing we can do about it. But Congress cannot constitutionally impose a penalty on people for refusing to buy a certain product. This is beyond even the reach of the commerce power. It’s a distinction simultaneously very fine and very intuitively obvious — the government can make you (help) pay for other people’s food stamps, but it can’t make you go out and buy broccoli.

    The Sixth Circuit jumped on this distinction, and the lawmakers’ fear of the “T” word, in one of the challenges to the health law (though it eventually upheld the law on other grounds):

    Congress might have raised taxes on everyone in an amount equivalent to the current penalty, then offered credits to those with minimum essential insurance. Or it might have imposed a lower tax rate on people with health insurance than those without it. But Congress did neither of these things, and that makes a difference. . . .

    The individual mandate is a regulatory penalty, not a revenue-raising tax . . . . That is what Congress said. It called the sanction for failing to obtain medical insurance a “penalty,” not a tax. Words matter, and it is fair to assume that Congress knows the difference between a tax and a penalty . . . making it appropriate to take Congress at its word. That is all the more true in an era when elected officials are not known for casually discussing, much less casually increasing, taxes.

    Thomas More L. Ctr. v. Obama, 651 F.3d 529, 550-51 (6th Cir. 2011) (emphasis added).

    Even once the challenge reached the Supreme Court, the government did not push the Justices to uphold the law under the Taxing Clause. Instead they focused on Congress’s broad authority under the Commerce and Necessary and Proper Clauses to regulate what they consider to be economic activity (i.e., participation in the healthcare market, which, the argument goes, all of us do simply because we are entitled to treatment whether or not we can pay, forcing those that can to pay for those that cannot). The merits of that argument are not my point here, but if you’re interested check out SCOTUSblog‘s (very thorough) coverage.

    Instead, what I’m interested in is the fact that the language of politics — avoid “taxes” at all costs — led the government to forfeit perhaps its surest defense of the law. The Sixth Circuit judge said as much in the two paragraphs above.

    At first blush, it seems silly that saying “penalty” when you mean “tax” could be the difference between blatant unconstitutionality and perfect acceptability. But perhaps Judge Martin has a point. Don’t we want to hold politicians accountable for what they say and the language they use to say it? Isn’t that especially so when that language is meant to mislead?

    That seems to be precisely what Judge Martin is doing. He’s telling politicians that he’s going to take seriously what they actually say, especially when there’s reason to believe they mean something different but don’t want to let the rest of us know.

    If the language of politics can be used to mask an unpopular proposal, then it should have to be used subsequently to defend that proposal too. To put it differently: If you want to bamboozle the voting public with deceptive language, by all means do so. Once you’ve made your bed, however, you have no choice but to lie in it.

    Oh, and when I say “lie,” there is no pun intended.

     
  • John Stokes 2:26 pm on February 7, 2012 Permalink | Reply
    Tags: 9th circuit, California, , constitutional law, gay marriage, gay rights, , prop 8, proposition 8   

    Prop 8: The importance of being ‘married’ 

    The 9th Circuit ruled today that California’s Proposition 8 was unconstitutional, saying that it violated the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution. For a summary of the ruling and a link to the opinion itself, check out SCOTUSblog.

    Most of us probably remember that Prop 8 was the anti-gay-marriage initiative that California adopted a couple years ago. More specifically, though, Prop 8 was a public initiative that amended the California Constitution to prevent same-sex couples from obtaining the official designation of ‘married.’ It left in tact all of the rights afforded to gay and lesbian couples — the same rights that married opposite-sex couples are entitled to — but it forbade them officially to call these relationships ‘marriage.’

    One might argue–as indeed the proponents of Prop 8 did–that if none of the substantive rights of gay couples were taken away, the lack of official designation shouldn’t be a constitutional problem. Having the rights, after all, is more important than what they are called. But the 9th Circuit disagreed:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.

    –  Perry v. Brown. 9th Circuit 10-16696. (from Judge Reinhardt, writing for the panel that decided the case)

    In other words, what you call something does matter. And this is a powerful idea. The 9th Circuit says it doesn’t care if you leave the substantive rights in tact; it doesn’t matter if you maintain all the other entitlements that come along with the word ‘marriage.’ No– certain words have such special significance, such special power, that to deny access to their use alone is enough to violate a right.

    So indeed – the 9th Circuit’s ruling came down to the fundamental importance of being, specifically and officially, ‘married.’

     
    • John Stokes 2:40 pm on February 7, 2012 Permalink | Reply

      “Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

      -Judge Reinhardt putting the point slightly differently

    • johnwcowan 2:57 pm on February 7, 2012 Permalink | Reply

      Note that there is also an equivocation on married. In Romer v. Evans, gay people were denied certain rights tout court. But, as the anti-marriage-equality folks are forever pointing out, no adult in America is denied the right to marry as such — only the right to marry certain other adults.

      I hope that when the Supremes take this up, as they inevitably must either now or later, that they will look back to Loving v. Virginia, which also purported to allow everyone the right to marry, just not people of another color. The Court struck that one down, and just before Mildred Loving died in 2008, she expressed herself on the subject of gay marriage: she was for it.

      • John Stokes 3:25 pm on February 7, 2012 Permalink | Reply

        Good point. The biggest problem with relying on Loving is that it was a race case and thus triggered strict scrutiny. Sexual orientation only gets rationality review. So it’s not clear that Loving would help on the Equal Protection front.

        But there’s still some language in Loving that could buttress the Due Process claims. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

        This is reminiscent of the language in right-to-privacy cases, e.g. Griswold, Roe, and Casey, saying the state can’t make reproductive decisions for you (the freedom to make these decisions is a fundamental right, so laws that limit that right are put under strict scrutiny). This got pushed farther in Romer and Lawrence, where the Court said the state can’t make decisions about private sexual activity/partners. So the Loving language might be employed to extend the claim to decisions about who to marry — saying that this, too, is a fundamental right and thus gets analyzed under strict scrutiny.

    • John Stokes 10:45 pm on February 7, 2012 Permalink | Reply

      Meant to post this earlier, another good point from a close friend: The whole reason that Prop 8 was passed in the first place was that its proponents thought the word “marriage” was special to them. If the point were the rights associated with the word, they would either have done nothing or passed an initiative that affected the substantive rights of same-sex couples. Instead, the focus was on whether or not same-sex couples could use the term itself — an important difference.

    • Laura Heymann 2:52 pm on February 8, 2012 Permalink | Reply

    • John Cowan 1:58 am on February 11, 2012 Permalink | Reply

      The three levels of scrutiny are judge-made law, and judges can change them.

      • John Cowan 4:31 am on February 12, 2012 Permalink | Reply

        I’ve read the whole opinion and dissent now, and it seems clear that the court remains within the bounds even of rational-basis scrutiny. There is no constitutional right to be on welfare, but a law that prevented Greek-Americans from receiving welfare would be facially unconstitutional, even though people of Greek descent don’t constitute a suspect class. By analogy, there is no constitutional right to marry, but given that people are allowed to marry, removing that right from a particular group is not the kind of law that our constitution allows our legislatures to pass.

        As for the dissent, it’s not so much about rational-basis review as about irrational-basis review. The learned judge seems to think that it’s perfectly fine for a legislature (or the sovereign people) to criminalize the making of strawberry ice cream if they believe that eating strawberry ice cream increases the likelihood of criminal behavior (which is undoubtedly a legitimate state purpose). The fact that that idea is preposterous seems to make no difference to him.

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