MANDATES, THE CONSTITUTION & MORE STRAW MEN

A couple of days ago I suggested that the President and his progressive supporters would be faring better in the health care reform debate if they would stop producing disingenuous answers to sincere and legitimate questions about Obamacare.

An indication of progressive intentions in this regard can be found in their responses to a Washington Post opinion piece that makes the following assertion about the constitutionality of a federal mandate requiring every American to buy health insurance:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

So, how do our progressive friends respond? Conor Clarke produces the following straw man:

No mandate supporters take the position that the law should read, “purchase health care or face death by hanging.” That would probably be a bad law. It would also, says the Post authors, be an unconstitutional law.

A law requiring the uninsured to be drawn-and-quartered would also be a “bad law,” but the authors don’t mention capital punishment. What they do point out is that the government doesn’t have the power “to regulate Americans simply because they are there.”

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,? but for no other reason than that people without health insurance exist.

In response to this assertion, Kathy Kattenburg provides a little guilt by association with her straw man:

Two conservative Republican attorneys who worked in the Justice Department during the Reagan and Bush 41 administrations argue in the Washington Post that universal health insurance coverage is unconstitutional. Their reasoning? Lacking health insurance does not have any effect on the economy.

Kattenburg then knocks down her straw man by providing “another professional legal opinion” that vigorously refutes a point the authors of the Post piece don’t make. This stuff really doesn’t cut it, guys. If you’re going to win the debate, you’ll have to actually particpate.

UPDATE:

Two commenters suggest that I unfairly focus on a joke in Conor Clarke’s post and ignore the real substance found in the following paragraphs. Clarke himself posted a comment confirming that the “death by hanging” bit was an attaempt at humor. Fair enough. Let’s take a look at the “substantive” stuff:

But mandate supporters do imagine using tax incentives to nudge everyone towards buying a plan, and the Post piece takes the position that it would also be unconstitutional to have tax penalties for individuals who don’t. And that’s where my intuition gets confused.

There is indeed confusion to be found here. First, “mandate” and “incentive” are not synonyms. The former is a command that one cannot disobey without incurring some legal penalty. The latter is stimulus to action that a free individual can ignore or not according to her own estimation of her best interests.

And Clarke’s attempt to conflate “tax penalties”  with “tax incentives” is even less coherent. Rivkin and Casey declare such penalties unconstitutional precisely because they would be used to coerce allegedly free citizens to obey a federal mandate that is itself unconstitutional. Incentives carry no such baggage.

More to the point, the incentive issue is yet another straw man. The authors of the Post article haven’t asserted that incentives (via the tax code or whatever) are unconstitutional. They argue that an individual MANDATE is unconstitutional. And I have yet to read a convincing argument to the contrary.

Comments 8

  1. AL wrote:

    I think you’re being unfair to Conor Clarke. He may have proposed a straw man argument, as you say, but that’s a very small element of his post. I think he ends up asking a legitimate question regarding taxation. I also think it’s unfair to pin the straw man tag entirely on the left (as if Clarke is really on the left–isn’t he a retro-conservative or am I confusing him with another Conor?).

    Death panels is the obvious straw man on the right, but so is any invocation of Canada or the NHS. Perhaps the bill on the table may lead to a single payer system, but not anytime soon. We can’t even be certain that a public option will be in the final bill. What then, is the point of even mentioning the systems in Canada or Britain, which the right does very very often?

    You are right in that there are sincere questions that deserve sincere answers, but you yourself are being disingenuous if you do not acknowledge the existence of much chaff getting in the way of those sincere answers.

    Posted 23 Aug 2009 at 7:19 am
  2. johnson wrote:

    Well now hang on. Why don’t you comment on the rest of the Conor Clarke piece? I haven’t read the WaPo op-ed, but I just looked at Clarke’s post and followed the TrackBack here. The business about “death by hanging” appeared to me to be a joke. The real point Clarke was making didn’t have anything to do with that. It was about whether there’s a way to structure the incentives so as to get around the op-ed’s concerns about the constitutionality of an individual mandate.

    It strikes me as a lousy way to make the point that “straw men” are bad — taking a joke out of context and criticizing it while ignoring the rest of the piece.

    Posted 23 Aug 2009 at 11:40 am
  3. Conor Clarke wrote:

    I can confirm that the business about death by hanging was, in fact, a joke. The other stuff was serious and, I hope, substantive.

    Posted 23 Aug 2009 at 3:07 pm
  4. johnson wrote:

    Thanks for stepping up to the plate and “actually participating” in the debate with Conor Clarke. I think that was appropriate, given the substance of your post.

    That said, now that you’re addressing his piece, I think you’re missing Clarke’s point. You take issue w/ what you perceive as his conflation of “mandate” (or “penalty”) and “incentive.” But the point of his post is that those two ideas are in fact two sides of the same coin. A clever person could come up with a way to frame the exact same policy as either one.

    If you penalize someone for failing to do something by, say, taxing or fining them, that sounds like a “mandate.” But you could just as well reward everyone who is doing it but not those who aren’t, and voila, incentive.

    That’s why Clark’s post contains such language as “Is it unconstitutional to face a tax penalty if you don’t do something (‘purchase health care’) but just fine to enjoy a tax benefit if you do (‘purchase a house’)?” He even provides a concrete example of how this might work in the health care world: “You could have a ‘health-care head tax’ of $500 per person (or whatever), and you could rebate that amount to the individuals who purchase plans. This would have the effect of punishing everyone who doesn’t purchase a health-care plan, but it would be indistinguishable from lots of junk that already litters the tax code.”

    That was the whole point of his post, to discuss the fact that “incentive” vs. “mandate” is really a distinction without a difference. So to suggest that the “incentive issue” is a straw man because the op-ed writers were discussing “mandates,” not “incentives,” is off the mark. It actually seems like a straw man to me. He doesn’t so much argue against the “mandates are unconstitutional” point, as point out that if that’s really a problem you could structure it as an incentive and avoid the issue.

    Posted 25 Aug 2009 at 4:05 pm
  5. Catron wrote:

    “Incentive? vs. “mandate? is really a distinction without a difference.

    As it relates to the Consitution, it is the distinction that makes ALL the difference. This is the point that neither you nor Clarke seem to grasp.

    The federal government has the power to create tax incentives but none to impose or enforce a mandate. It’s really that simple.

    Posted 27 Aug 2009 at 1:00 pm
  6. johnson wrote:

    Catron, that is fine — I honestly don’t really take issue with that if you can back it up. It is quite possible, probable even, that I’m not grasping something fundamental here. While it doesn’t take away from my point that the argument “the op-ed was talking about mandates but Clarke is talking about incentives” is itself a straw man — since Clarke was talking specifically about the fact that mandates and incentives are two sides of the same coin — I accept that substantively I might be missing the point.

    But then “actually participate” in the debate, and help me clear it up. Do you agree w/ Clarke that, if the system were structured to act as an “incentive” rather than a “mandate,” it would be Constitutional? Here’s Clarke’s one-off idea along those lines: “You could have a ‘health-care head tax’ of $500 per person (or whatever), and you could rebate that amount to the individuals who purchase plans. This . . . would be indistinguishable from lots of junk that already litters the tax code.”

    If it is the case that something like this would be Constitutional, then I don’t think I’m willing to stand corrected. If not, why not? That’s the thing I don’t get.

    Posted 27 Aug 2009 at 3:11 pm
  7. charles ward wrote:

    A Forced action by any other name, (mandate,incentive) is still a forced action. If government can force a person to do things with their body, then they can force a woman choice. A body is a body.

    Posted 15 Dec 2009 at 3:50 pm
  8. Matt wrote:

    I agree with johnson. You are posturing and blowing hard while not really participating or helping the discussion. Clarke’s piece was quite different – he was asking honest questions and looking for answers, not making definitive statements or puking out talking points.

    Do you want to be interesting and constructive or another boring, blow-hard like Olbermann, Limbaugh, or Hannity?

    Posted 23 Mar 2010 at 9:20 am

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