I have been opposed to laws requiring people to purchase insurance ever since three auto insurance bills found their way on to the California ballot in 1988. I take it as axiomatic that it is fundamentally immoral for the state to use its power to force people to buy anything, even insurance. So, I am very sympathetic to arguments about the unconstitutionality of the mandatory insurance bill now before a House-Senate conference committee. Not that I think it matters, mind you, as in our judge-mediated system, the law is whatever judges say it is (which is going to be true regardless), and I suspect enough votes will be found somewhere to uphold this individual mandate.

Jack Balkin over at the Balkinization blog takes this point up, however, but noting how the House and Senate bills are written, and he concludes that health insurance legally amounts to an addition tax in both bills — a surtax in the House bill and a penalty tax in the Senate bill. He concludes:

Congress’s powers to impose an income tax, a penalty tax, or an excise tax are unproblematic. The House and Senate versions of the individual mandate are clearly within Congress’s powers to tax and spend for the general welfare. Nor are they direct taxes that must be apportioned by state. Under the 16th Amendment taxes on income need not be apportioned no matter what the source of the income; excise and penalty taxes are not taxes on real estate and they are not capitation or “head” taxes, taxes that are levied on the population no matter what they do. Therefore they are not direct taxes within the meaning of the Constitution and existing precedents.

Either the House or the Senate version of the tax is clearly constitutional under existing law. It is not even a close question.

Let’s assume this is true. This would mean, effectively, that insurance premiums are a kind of tax as well, or at least a payment made in lieu of paying a tax, which I would consider the same thing. Balkin himself says, “[t]he individual mandate is structured as a tax.” Are progressives okay with a law giving private corporations the ability to collect taxes? Why are they okay with this?

And would they be okay with a similar law requiring people to buy firearms, or pay a penalty tax for refusing to do so?

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