Rights for Robots?
Health Care versus the Civil Rights Act

Health Care and Conscription

Jonathan B. Wight

I posed the query below to Bart Hinkle, a gifted editorial writer for the Richmond Times Dispatch, who enjoys the foray into ethics and economics.

Query to Bart:  The Constitution says Congress shall have the power “To raise and support Armies” – and does not specifically say how to do it.    The draft is constitutionally legal, even though it is a form of slavery.  How is the “conscription” to buy health insurance different from the “conscription” to serve in the army?   

BART:  I don't think it is any different. Conscription for any purpose has always struck me as an egregious invasion of individual liberty.

In fact, military conscription was the cover the Supreme Court used to justify many WWII-era economic regulations. In a decision on rent controls, William O. Douglas wrote that

 A nation which can demand the lives of its men and women in the waging of . . . war is under no constitutional necessity of providing a system of price control on the domestic front which will assure each landlord a ‘fair return’ on his property.

Likewise, the high court ruled that Washington could renegotiate wartime contracts to eliminate “excess profits” because “in total war it is necessary that a civilian make sacrifices of his property and profits with at least the same fortitude as that with which a drafted soldier makes his traditional sacrifices of comfort, security, and life itself.”

JONATHAN:  Thanks, Bart.  That’s very helpful.  It would imply (to me) that Virginia Attorney General Cuccinelli’s lawsuit against forced health insurance is rather frivolous (although you point out in a separate email that it all depends on the judicial landscape when the suit comes up).

Oliver Wendall Holmes wrote that “Taxes are the price we pay for civilization.”  Being forced to buy health insurance is equivalent to paying a tax—with the proceeds used to buy insurance.  While no one likes to pay taxes, the U.S. is not anywhere near the high marginal tax rates we were in previous decades (does anyone remember the 1970s?).  Hence, I don’t think the destruction of liberty is at hand.   I could be wrong.... 


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Interesting exchange, Jonathan, thanks--not to diminish the contribution of Mr. Hinkle in any way, but many legal scholars have chimed in on this also, arguing for both sides of the debate. (Sorry that I don't have cites/links on hand.)

I see two problems with this analysis of the issue:

1) As a previous commenter noted, the individual mandate is not simply a tax to pay for insurance; that would be true under a single-payer system, just as taxes are used to pay for police services, the court system, national defense, and so on. Taxes don't go directly to private parties (even when private firms provide public services), so the individual mandate is not equivalent to a tax (except in bare monetary terms; see the literature on fines vs. prices for a similar disanalogy), but rather a coerced transaction with another private party as a condition of citizenship--that's the crux of the matter.

2. War has been used to justify many extraordinary intrusions on liberty, for good reasons and bad, but this is not a response to war. (This is more a response to the historical uses of the conscriptions argument, which I thank Mr. Hinkle for bringing up--I was not aware of that.)

Thanks for this perspective, Mark, particularly the "coerced transaction as a condition of citizenship" issue. Well put. It's something I need to learn more about.
As a practical matter, however... [terrible thing to hit a philosopher with]... I don't see much difference between a tax and a mandate to buy. We could call it a user fee, which often goes to private third parties. The fact that government "collects" the fee matters little to the ultimate disposition. Government as the "middleman" doesn't make it better (or worse) in my opinion.
Also, many lobbyists who support freedom insisted that we NOT use taxes to buy directly, but rather to insist that consumers buy from private insurers. Can't have it both ways.

Perhaps I am misunderstanding the argument, but are you are saying "the government can enslave us for purpose A, so why can it not enslave us for purpose B"? An interesting way to argue *for* heath care reform. I, like Bart, would prefer zero slavery.

There is one difficulty with this argument however, the Constitution specifically grants Congress the power to raise armies. Unless I am mistaken, there is no mention of heath care. Would that not cause a 10th Amendment issue?

Finally, right now there is no tax on citizenship. If I do not work, do not own property and do not purchase anything I am still a citizen in good standing without paying a cent of taxes, correct? While the mandate might be legal and moral, it has an entirely different logic than previous taxes or user fees. Now, in order to not be considered a criminal, I have to purchase a product. In essence, we now have a user fee for America. Maybe a good thing, but revolutionary nevertheless.

Jonathan, you said: "I don't see much difference between a tax and a mandate to buy. We could call it a user fee, which often goes to private third parties. The fact that government "collects" the fee matters little to the ultimate disposition. Government as the "middleman" doesn't make it better (or worse) in my opinion."

I think it goes hand-in-hand with the other concept: the fact that the government is requiring a purchase from a private party, not as a condition of some optional status (like automobile driver) but as a condition of citizenship, is constitutionally troubling. If the state wants citizens to pay taxes to cover the cost of some public good (provided by a private firm), fine; but forcing citizens into private transactions--with no essential public good element to motivate it, despite their claims that health care is a public good--is beyond any constitutional power granted the federal government. (User fees also apply to optional services; witness the response to UC students claiming their tuition increases were tax increases.)

You also said: "Also, many lobbyists who support freedom insisted that we NOT use taxes to buy directly, but rather to insist that consumers buy from private insurers. Can't have it both ways."

Really? I never heard that--this may have been motivated by opposition to a public option/single-payer system. Taken by itself, of course we want voluntary transaction between private parties, but coupled with an individual mandate, those private transactions become coerced, and the coercive aspect is what is the problem.

Is everything that is coercive by definition bad and impermissible?

Zero slavery is a great ideal. But citizenship in a democracy does have some positive obligations. For example, citizenship requires jury duty, which imposes an opportunity cost of time that acts as a tax that all must pay when called. It is a price of citizenship, and jury service is considered an essential part of making a just society. People with special hardships are exempt—and health care special cases are likewise subsidized.

Another example is that parents are forced by law to educate their children –e.g., forced to buy education services either through property taxes or through private tuition. They can “avoid” it by home schooling, but that requires special training and certification—also a burden of citizenship.

I’m sure there are easier/better/cheaper ways of promoting health care than what we’ve got in the new law. We can debate whether the policy is good or bad, but it is not revolutionary in principle. Since the colonial period, conscription (or mandates) have been used to require participation. Health care generates positive externalities that are well known.

(These examples come from Michael C. Dorf, "The Constitutionality of Health Insurance Reform, Part I: The Misguided Libertarian Objection") http://writ.news.findlaw.com/dorf/20091021.html


You make an excellent point that not all coercive exercises are by definition "bad". Jury duty is a good example of a "good" activity forced on me by the state. But again, I believe jury duty is explicitly mentioned in the constitution, correct?

Education is tricker still, as a thought experiment we could imagine a person that pays no property taxes still sending their children to school. Perhaps they live in their car like Jewel and her mother. Again, this person will not be a criminal.

With the health care mandate a person *is* now a criminal if they do not purchase insurance. This is what I am calling revolutionary. A heath care mandate is essentially a user fee for citizenship. The fact that I am being required to make a private transaction (as Mark points out) is the icing on the cake. As far as I know, these are two brand new concepts of what it means to be an American.

Again, not to nitpick, this might - on balance - be a good thing, but it is far from business as usual.

Ideally, state coercion is justified only to limit individual coercion (i.e., to enforce negative rights against interference).

State coercion may be justified in the case of public goods; some level of taxation is necessary to fund the activites of even a minimal government, some citizen participation is necessary for a functioning jury-based legal system, some minimal level of education is required for a functioning democracy. These are more controversial, but not very.

But forcing an individual to purchase health care insurance for him- or herself - a private good with no public spillover effects* - meets neither of these tests. So I think it is revolutionary in principle (I disagree with Dorf on this as well).

* The reasons given for the public good nature of health care are circular; for instance, if the state is rendering illegal the pre-existing condition exemption for new enrollments while capping premiums, it needs to expand the pool. And increased coverage will lower public health oosts simply because the state has assumed those costs. But the state cannot use its own misguided policy decisions to defend a coercive mandate on individuals on principle.

And Mike is right that noncompliance technically makes one a criminal, but it turns out that, at least according to Congres's Joint Committee on Taxation, the individual mandate has no teeth anyway:

The penalty applies to any period the individual does not maintain minimum essential coverage and is determined monthly. The penalty is assessed through the Code and accounted for as an additional amount of Federal tax owed. However, it is not subject to the enforcement provisions of subtitle F of the Code. The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner.

Good points, Mike and Mark. My replies:

(1) The Constitution does indeed state, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury..." However, it does not say "how" this shall be carried out. If all juries were voluntary and constituted of paid professionals (like a professional army)--which wouldn't be a bad thing in my opinion--we could eliminate that coercion. However, Congress and other localities choose coercion, and it is legal and constitutional.

(2) While "health" is not specifically mentioned in the Constitution, the preamble discusses the "general welfare," which courts have traditionally and specifically interpreted to include health.

(3) The case of a family living out of its car is interesting. Since they do not have income to buy insurance, wouldn't they would be covered by Medicaid? Such a family would not be criminalized, so that seems a bit of a red herring.

(4) Health care quite clearly involves aspects of public goods. Health care information, for one thing, is nonexclusive and nonrival. Health care also involves positive and negative externalities. If you misuse prescription antibiotics, that diminishes their effectiveness for my use later. If you have no insurance and don't get treated for a variety of contagious diseases, you will be spreading them!

(5) President Bush's counter to the last point was to argue that everyone already gets treatment, even if only at emergency rooms. Emergency rooms cover only the basic symptoms, however; often people are given a proverbial "band aid" but not actually given treatment that leads to a cure. People often wait before going to emergency rooms until their situation is dire, so any life saving treatment is far more expensive--imposing a burden on the rest of society. So the public health aspects are an important part of the story and the mandate.

Cheers and enjoy your weekends. :)

Let me expand on the public good aspect, which is an interesting topic in theory beyond the current debate. Jonathan, you say:

Health care information, for one thing, is nonexclusive and nonrival.

...as is most information and media, but I was referring to the provision and insurance coverage of health care services themselves.

Health care also involves positive and negative externalities.

...which don't in and of themselves justify state action unless the externalities are wrongly caused (see my earlier post on this topic) - externalities are everywhere, but not all deserve notice except for utilitarians.

>If you misuse prescription antibiotics, that diminishes their effectiveness for my use later.

A prisoners' dilemma, yes, but not a clear rights violation to me. There are lots of acts that do not maximize well-being, but not all of them justify state intervention. (I'm not saying that this one doesn't, but I don't think it makes the more general case.)

>If you have no insurance and don't get treated for a variety of contagious diseases, you will be spreading them!

...to other people who have been so treated - in other words, an individual decision with consequences specific to that individual (and other individuals who made similar choices).

Look at it another way: my health care choices, if I am held responsible for the costs of them, directly affect only my interests, and unless they have wrongful effects on others, is a purely private matter. This is what I meant by the absence of public good aspects.

There may well be public good aspects in some cases: for example, outbreaks like the recent swine flu before vaccinations were developed. But most health care decisions are purely private, despite popular perceptions to the contrary, perceptions that are usually supported by cost arguments that beg the question.

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