Notes From Babel

The Mandate, Semantics and Rhetoric

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Ezra Klein argues the fight over the individual mandate is largely semantic:  the individual mandate could have been packaged as a tax deduction, and no one debates the constitutionality of tax deductions.  The fact that we aren’t crowing about the mortgage deduction credit, say, like we are the individual mandate suggests we really aren’t appalled by the deprivation of liberty.  After all, Klein says, “This is not a country built upon semantics.”

There’s plenty wrong with this argument.  First, it’s not semantics.  It matters whether a law merely encourages a market participant to choose one transaction over another, or whether it seeks to force citizens into the market in the first place.  Subsidizing economic choices is problematic enough.  But ultimately, the status quo from the government’s point of view is that economic activity is occurring, taxes are collected automatically, and the government prodding occurs ex post.  With a mandate, however, the status quo is changed.  From the government’s point of view, no economic activity is occurring.  To make it occur, the government has to issue a penalty ex ante.

To put it another way, there might be no difference between a punishment approach and a reward approach if you assume the person is going to comply with the mechanism. But the reward approach never requires you to engage in a separate transaction with the government—other than the transaction in which you receive a benefit (i.e., the deduction).  The punishment approach, on the other hand, requires you to engage in a separate, and very undesirable transaction with the government: writing a big check. And if you refuse to participate in that undesirable forced transaction, things get worse from there.

Second,what does Klein mean when he says “this is not a country built on semantics”? Who is he referring to?  Certainly not politicians—certainly not, for example, the President.  As Peter Suderman reminds, candidate Obama campaigned against the mandate, suggesting it would be akin to trying “to solve homelessness by mandating everybody buy a house.”  As we know, Obama later vociferously argued the mandate is “essential” to the federal health care package.  If it’s semantics, why the change of heart?  Did he not mean what he said before, or not mean what he said later?  Is it instead all a production for our benefit?

But that wasn’t the end of the conceptual packaging and re-packaging of the mandate.  Suderman goes on:

It’s not the only instance in which the president has tried to have it both ways on the mandate. In September, 2009, Obama was asked whether he believed the individual mandate constituted a tax. His response was unequivocal: “I absolutely reject that notion.”  Worried that the public would perceive the mandate as a tax anyway, the law was scrubbed of any mention of the mandate being a tax before it was signed into law.

But in defending the law in court, his administration absolutely accepted the notion that the president had once absolutely rejected. In July, 2010, The New York Times reported that the White House had come to believe that the idea that the mandate constituted a tax was “a linchpin of their legal case in defense of the health care overhaul and its individual mandate.”

In a district court case last week ruling Obamacare unconstitutional, Judge Roger Vinson said the packaging does matter for purposes of determining the Congress’s power to enact such unprecedented legislation:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely.

So obviously, Klein is wrong: Obama doesn’t think the packaging of the mandate is merely semantics, and neither, apparently, do Americans.  Judge Vinson certainly doesn’t—he’s stakes what is quite possibly the most important decision of his career on it.

Despite all this, Jack Balkin, concurring with Klein, writes:  “The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.”  This is a sophomoric oversimplification, most likely arising out of a deep frustration with a central legislature that, by design (for better or worse), moves slowly and clumsily, and pores endlessly over conceptual, legal, and rhetorical devices.  It is understandable that those who want to see the “big changes” get made would get frustrated with those of us who fear we’re moving too rashly.  Still, Balkin’s sentiment is a shameful thing to write about one’s countrymen.

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Written by Tim Kowal

February 2, 2011 at 11:58 pm

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