Law, Policy, and Politics are not the Same Things

The PPACA, the fight over it, and the Sibelius ruling all underscore this fact.

Ok, first it was a mandate that derived from Congress’s Article I, Section 8 powers to regulate interstate commerce and now it is, depending on one’s preferred terminology, a tax or a penalty (see Doug Mataconis’ post from yesterday).  Or so has been the focus of the political and legal debate.

Now, what is important here:  all that (and more) is about the politics of the bill, not about the policy it creates.  Indeed, the theories laid out in court, whether they were about a specific definition of commerce or were about pending forced broccoli consumption, were just that:  theories (or really, debating points founded in theory) that were attempts to persuade judges in various courts.  Even said theories are not about the law and policy themselves, but are about defending or opposing them.

What am I getting at here?

Well, the point is:  there is a difference between what actually is in legislation and the political rhetoric used to defend it as well as a difference between what is actually in legislation and the argument used in court to defend or oppose it.  However, the public does not see it that way and politicians certainly don’t talk that way (even when they know better).  And, also, lawyers are trained in arguing their side of the case, no matter what.  Lawyers are not philosophers engaged in a give and take that can lead to changing the mind of the other lawyers.  That’s not their job.  They are to advocate for their side and to be as creative as possible in the endeavor.  That are not supposed to have open minds about their side.  And if we throw in some political ideological and partisanship, we end up with retrenched sides talking past one another.  (Granted, this is nothing new).  This is one of the reasons I am not a fan of watching lawyers argue on partisan talk shows.

All of this hinders understanding in the public.  Now, of course, a lot of people (most, in fact) aren’t really interested in understanding, but rather they want their side to win (or, at least, for their side to score points).

Consider this whole question of whether the individual mandate is a tax or not and to do we have to bifurcate the discussion into two pieces:  one about the law as passed and the policy regime it creates, and one about politics, rhetoric, legal arguments, and the like.

I would argue  that the mandate has always been a tax based on Congress’s taxing power (based on looking at the bill), but it was justified by the commerce power because people don’t like taxes, even taxes on other people (the politics of it all).

The Law Itself

I decided to do something radical and go look at the appropriate segment of the law itself (yes, I know, it is like I am not a pundit or something).

It is true that the text of the law makes an implicit commerce clause argument.  A portion is as follows:

PART I–INDIVIDUAL RESPONSIBILITY

SEC. 1501. <<NOTE: 42 USC 18091.>> REQUIREMENT TO MAINTAIN MINIMUM
ESSENTIAL COVERAGE.

(a) Findings.–Congress makes the following findings:
(1) In general.–The individual responsibility requirement
provided for in this section (in this subsection referred to as
the “requirement”) is commercial and economic in nature, and
substantially affects interstate commerce, as a result of the
effects described in paragraph (2).

This, it is worth noting, a finding and not a change in a specific policy.  That comes with changing the tax code.  In other words, this is a declaration, not an action.

Also, in an amendment, we find the following:

(a) <<NOTE: 42 USC 18091.>> Section 1501(a)(2) of this Act is
amended to read as follows:
“(2) Effects on the national economy and interstate
commerce.–The effects described in this paragraph are the
following:
“(A) The requirement regulates activity that is
commercial and economic in nature: economic and
financial decisions about how and when health care is
paid for, and when health insurance is purchased. In the
absence of the requirement, some individuals would make
an economic and financial decision to forego health
insurance coverage and attempt to self-insure, which
increases financial risks to households and medical
providers.
“(B) Health insurance and health care services are
a significant part of the national economy. National
health spending is projected to increase from
$2,500,000,000,000, or 17.6 percent of the economy, in
2009 to $4,700,000,000,000 in 2019. Private health
insurance spending is projected to be $854,000,000,000
in 2009, and pays for medical supplies, drugs, and
equipment that are shipped in interstate commerce. Since
most health insurance is sold by national or regional
health insurance companies, health insurance is sold in
interstate commerce and claims payments flow through
interstate commerce.

[[Page 124 STAT. 908]]

“(C) The requirement, together with the other
provisions of this Act, will add millions of new
consumers to the health insurance market, increasing the
supply of, and demand for, health care services, and
will increase the number and share of Americans who are
insured.
“(D) The requirement achieves near-universal
coverage by building upon and strengthening the private
employer-based health insurance system, which covers
176,000,000 Americans nationwide. In Massachusetts, a
similar requirement has strengthened private employer-
based coverage: despite the economic downturn, the
number of workers offered employer-based coverage has
actually increased.

To be honest, I must confess that all of this makes a pretty clear case that the health care industry is part of interstate commerce.  But, of course, the issue at hand here is not whether that is true or not, because it is:  the issue is whether the mandate to purchase insurance can be imposed as a result.

The actual policy change is to the IRS Code:

(b)(1) Section 5000A(b)(1) of the Internal Revenue Code of 1986, as
added by section 1501(b) of this Act, <<NOTE: 26 USC 5000A.>> is
amended to read as follows:
“(1) In general.–If a taxpayer who is an applicable
individual, or an applicable individual for whom the taxpayer is
liable under paragraph (3), fails to meet the requirement of
subsection (a) for 1 or more months, then, except as provided in
subsection (e), there is hereby imposed on the taxpayer a
penalty with respect to such failures in the amount determined
under subsection (c).”.

An important difference between the commerce regulating language and the tax code language is this:  one makes an argument (i.e., seeks to justify a theory) and the other just changes the wording in the tax code.

The Court did not find the argument about commerce acceptable, but allowed the tax language to stay.  Now, we can now debate what to call the changes that already passed Congress before John Roberts ever got a chance to read them, but the bottom line is that the tax code was changed in a way to modify behavior.  There is nothing new about that (see, e.g., the mortgage interest deduction, and various tax credits that seek to modify behavior—the code is rife with them).

Indeed, there are a large number of reference to the Internal Revenue Code in the law, but of course this is, at least in part, because we have created this system in which health care is linked to employment.  There are also some funding mechanism of relevance (e.g., an excise tax on indoor tanning services, elective cosmetic surgery, and on high end health care plans, to name a few).  Indeed, all those are, quite clearly, tax increases in the bill.

It is true, as Roberts points out in his opinion, that the tax issue linked to the individual mandate is called a “penalty” and not a “tax” in the bill (although, it is a penalty that one pays via one’s taxes and is embedded in the IRS code—roses by other names and and all that).

The Politics of it All

A fundamental problem here is that the word “tax” has become the Voldemort of American politics, it is the Policy That Shall Not Be Named.  To be be for a “tax” is almost like being for pedophilia.   This leads to such interchanges as the one between President Obama and George Stephanopoulos (video here) in which Obama insists that the mandate is not a tax.   I would note, however, that it doesn’t matter what Obama called it:  such utterances have no legal significance.  Further, from a legal standpoint it doesn’t matter what pundits said about it at the time, or even what was argued before the Court.  All that matters is a) what was written in the law, and b) whether the Court upheld what was written or not.

Here’s the deal:  regardless of what Obama wanted to call the thing at the time because of political considerations did not change the nature of the alterations to the Internal Revenue Code of 1986 any more than did Robert’s majority opinion change those words.   Now, of course, the politics shift to the penalty v. tax argument (as if that makes any real difference).

Arguments over this issue now are really just about either philosophy, ideology, or pure electoral politics because the the policy in question stands (and stands in many ways on a long established taxing power).

To engage in my own philosophical aside, I must confess that I am a bit baffled by Robert’s reasoning on the commerce clause and the necessary and proper clause.  First, it is clear that the health care industry is one that transcends state borders (and is, therefore, part of interstate commerce) and that choosing not to purchase health insurance is not inactivity unless one plans to never seek medical care, and second if Congress can use their tax powers here, then surely there is a necessary and proper argument to be made based on taxing power (although I can see that by Roberts’ logics there can not be one based on commerce powers).  Still, this is just stuff for academics, lawyers, and politicians to debate (and from different perspectives for different reasons)

A fundamental point here:  political rhetoric does not change the content of written legislation.  Call it a tax, a penalty, Fred, whatever:  the words on the page do not change; the policy in question is no different because of a label.  For that matter, the policy is no different if the power that animates it is the commerce clause or simply the power to tax.

Another way to look at it:  there is the issue of what is (the words on the page), another issue of why it may be (i.e., in this cases commerce clause or taxing power), and what an individual may want it to be (which philosophy or politics, depending on the situation).

Mostly, my inspiration for looking into this was the fact that it seems that many people discussing this topic really are not arguing from a grounded position, but rather are picking and choosing ideological talking points vested far more in the campaign (i.e., does it help Obama or does it help Romney) than anything else.  Further, it seems that some people think that Roberts either re-wrote the law, or that he made up the tax code part on his own.  However, this is not the case.

Another weird thing about the rhetoric:  the opponents of the bill seem to be acting as if the Roberts’ ruling means some sort of generalized tax has now been imposed when, in fact, the tax in question is limited to only those persons who have no insurance and refuse to acquire it.  This is a tax, therefore, on a fairly small slice of the electorate.  Indeed, I would wager that nearly everyone up in arms (at least on TV, radio, and in print/on the internet) about this tax will not be paying it.

Really, is not the most bottom of bottom lines here that regardless of anything else, we are just seeing a transformation of the rhetoric by opponents and proponents of the bill?

I must confess, the more I listen to the arguments, the more they seem out of step with the actual policy and, further, the more confused I am as to the vociferous nature of the opposition.  I can understand not liking the policy for a variety of reasons (and from various philosophical positions).  I, myself, do not find it ideal by any stretch.  However, why it is Armageddon to so many is vexing.

FILED UNDER: Health Care, Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. OzarkHillbilly says:

    Still, this is just stuff for academics, lawyers, and politicians to debate (and from different perspectives for different reasons)

    Steven…. You left out us!

    ps. the relevant parts of the law are all cut off on the right side of the page view.

  2. HarvardLaw92 says:

    At its core, the question becomes one of “what limits does the Constitution impose on the power of Congress to impose a tax in furtherance of general welfare?”

    Frankly, I see no extant limits on this power in the wake of the 16th Amendment, which guts the apportionment requirement of A1S9 with respect to taxes on income, given that virtually all of the taxes that Congress collects from individuals are predicated in the system of taxation of income.

    Beyond this, the Constitution doesn’t even endeavor to define (or more aptly, to limit) what the term “general welfare” actually encompasses. It leaves that determination up to the legislative branch by default as an exercise of the power in question under Necessary & Proper.

    This was the basis of my argument from the outset that the statute would withstand scrutiny – the power of Congress to tax in furtherance of general welfare is essentially unlimited, and “general welfare” means pretty much whatever beneficial thing Congress wants it to mean.

    We can, of course, debate the wisdom of the policy that the statute imposes, and indeed should do so, but further discussion about the constitutionality of enacting it to begin with is moot.

  3. @OzarkHillbilly:

    Steven…. You left out us

    Oops. That was not the intention.

    And thanks for letting me know about the format–it is now fixed.!

  4. @HarvardLaw92: Agreed.

    Mostly, the real limitations of “limited government” are about the hoops that are needed to jump through to enact policy and the fact that, ultimately the congress (and, really, the rest of the government) is subject to political constraint within a know system.

  5. HarvardLaw92 says:

    @Steven L. Taylor:

    The real limitations of “limited government” extend no further than the ability of the electorate to both comprehend that something is problematic and to take action, via the vote, to address it.

    In other words, it depends on an educated and engaged electorate which is willing to do its own intellectual heavy lifting (as opposed to having that ostensibly done for it by sources of information with a vested interest in achieving a certain outcome).

    We haven’t had that for a long time, and to be frank I’m not sure that we ever did. The most resounding weakness of democracy is that it tends to be constrained by the lowest common denominator / bell curve peak of its own electorate.

  6. Dazedandconfused says:

    Great stuff. Thanks.

    It’s “Armageddon” to a Red Sox fan if the Yankees win the pennant, is it not? I hate how cynical this sounds, but tribalism is so damned much fun we will never, ever be rid of it.

    Checking rampant tribalism is always going to be a matter of handing a few “wise men” broad powers, I guess. What else can it be? I like to think Roberts understood that the arguments were contrived BS. The opposition doesn’t have any real objections to the point that it’s “necessary and proper” to have mandate to have a coherent healthcare insurance system. They even nominated a guy who says so. At that level, they can peek around their blindfolds a bit. Men with real power must do that. Solomon only feigned blindness when he decided to split the baby, didn’t he?

  7. Mr. Prosser says:

    Steven, your posts are the main reason I read this blog. Keep it up. Oh, Dazed and Confused, Solomon’s baby metaphor was a threat to split a kingdom in civil war. I don’t think the the conservatives want to go that far, but. . .

  8. Tsar Nicholas says:

    Politics is about power. Law is incidental to power. Policy is the endgame. Or the means to the endgame.

    Politics is about winning and losing. There are no prizes for 2nd place.

    Laws are malleable. Not set in stone. If Roberts had had a different breakfast, so to speak, the discussion today would be quite different. Juries can and often do nullify. Prosecutors have prosecutorial discretion. Possession trumps arguments about possession. Might does indeed make right.

    Policy is a road map. Or a site plan. Or a flow chart. Laws are not necessarily superior to nor inferior to policy. That depends upon who holds the power. Depends upon politics.

  9. Phillip says:

    Lawyers are not philosophers engaged in a give and take that can lead to changing the mind of the other lawyers

    Totally agree, and it begs the question: Do we still want lawyers running the country? Maybe when we stop paying people to make the rules, we’ll get the right kind of leadership. ‘Till then, pick your favorite lawyer.

  10. Dazedandconfused says:

    @Mr. Prosser:

    It was about feigning blindness while being anything but.

    Civil war? Over healthcare insurance?

  11. al-Ameda says:

    I must confess, the more I listen to the arguments, the more they seem out of step with the actual policy and, further, the more confused I am as to the vociferous nature of the opposition. I can understand not liking the policy for a variety of reasons (and from various philosophical positions). I, myself, do not find it ideal by any stretch. However, why it is Armageddon to so many is vexing.

    A couple of reasons why this (ACA) is a mosquito infested swamp come to mind:

    (1) The Administration and its surrogates did not bother to explain ACA, thus they quickly ceded the floor to conservatives who wanted no part of health insurance reform, and who were free to characterize it variously as, ‘socialist,’ creating death panels to kill old people, creating a tax that will destroy the middle class and end freedom as we know it. After that scorched earth napalming of the discussion of ACA, it is no surprise that we’re vexed.

    (2) Because we are unwilling to move to a “Medicare for all” system, we were virtually preordained to bring forward a complex and sloppy bill like ACA which, in including a conservative-based mechanism like the insurance mandate, is not easily understood in 30 second sound bites.

  12. An Interested Party says:

    Because we are unwilling to move to a “Medicare for all” system

    The “we” being conservatives, libertarians, and their fellow travelers, of course…

  13. al-Ameda says:

    @An Interested Party:
    T

    he “we” being conservatives, libertarians, and their fellow travelers, of course…

    “We” being the only irrational advanced nation in the world. We spend over 17% of our GDP on health expenditures while most of the other advanced nations spend 10%-12% for the same.

    I just think we’re incapable of getting it done, we’re too dumbed down to make the switch to a single payer health insurance system for all people of all ages. Switzerland and some other countries legislate the basic plan coverage that private insurance companies must offer to citizens, and if people desire additional coverage they purchase it on the private market too. It’s a public-private blend covers all citizens and for 30%-40% less cost.

    Again – other advanced countries with very good health delivery systems have it, but we cannot do it.

  14. JKB says:

    But the words on the page don’t mean what they did before the Supreme Court ruled. ”The shared responsibility payment” cannot be a penalty and as a “tax” it cannot be enforced using normal punitive measures. While not defined, it is implied that there is a limit to how much the payment can be before it becomes an unconstitutional penalty.

    Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.

    In fact, once the payment is made, there is no mandate to purchase health insurance, nor can their be, constitutionally.

    Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26,2012).

    Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance.

  15. Jenos Idanian #13 says:

    I’m probably nit-picking here, but:

    To be honest, I must confess that all of this makes a pretty clear case that the health care industry is part of interstate commerce. But, of course, the issue at hand here is not whether that is true or not, because it is: the issue is whether the mandate to purchase insurance can be imposed as a result.

    The first part is indisputably true. However, the mandate is not being imposed on the health care industry, but on the individuals, compelling them to engage in commerce with these entities. The individual are only potential participants in interstate commerce.

    Under this precept, every man is a rapist and every woman is a prostitute — because they hold the potential to engage in such activities.

  16. @Jenos Idanian #13:

    Under this precept, every man is a rapist and every woman is a prostitute — because they hold the potential to engage in such activities.

    That is just plain silly.

    Beyond that: the number of persons in the US who will never, ever engage the health care profession is extremely small.

    And one’s potential for needing some sort of serious medical attention is fairly probable (an accident, a serious illness, etc) and one’s likely need of basic care is near 100%. This is not a issue of abstract potential., but of rather significant probabilities (especially the older one gets–not just in terms of the effects of aging, but the increases in the number of chances you have to be in an accident of some kind).

    You comparison is specious.

    I would note also: anyone who has children can attest to the impossibility of opting out of the health care system. Children have to have shots to attend school, medical clearance and insurance to engage in certain kinds of sports. They get sick (a lot). They get hurt (with some frequency).