L.A. Hart on Obamacare: How the Individual Mandate is Cohesive

with Natural Rights

Jasmine Zahid

Does the individual mandate from the Patient Protection and Affordable Care Act maintain the natural rights

of its adherents?

Yes.

The Big Problem

‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIALCOVERAGESec. 1501\5000A IRC‘‘Sec. 5000A. Requirement to maintain minimum essential coverage.‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—An applicable individual shall for each month beginningafter 2013 ensure that the individual, and any dependent of the individualwho is an applicable individual, is covered under minimumessential coverage for such month.‘‘(b) SHARED RESPONSIBILITY PAYMENT.—‘‘(1) IN GENERAL.—Replaced by section 10106(b) If a taxpayerwho is an applicable individual, or an applicable individualfor whom the taxpayer is liable under paragraph (3),fails to meet the requirement of subsection (a) for 1 or moremonths, then, except as provided in subsection (e), there ishereby imposed on the taxpayer a penalty with respect to suchfailures in the amount determined under subsection (c).‘‘(2) INCLUSION WITH RETURN.—Any penalty imposed bythis section with respect to any month shall be included witha taxpayer’s return under chapter 1 for the taxable year whichincludes such month.‘‘(3) PAYMENT OF PENALTY.—If an individual with respectto whom a penalty is imposed by this section for any month—‘‘(A) is a dependent (as defined in section 152) of anothertaxpayer for the other taxpayer’s taxable year includingsuch month, such other taxpayer shall be liable forsuch penalty, or‘‘(B) files a joint return for the taxable year includingsuch month, such individual and the spouse of such individualshall be jointly liable for such penalty.‘‘(c) AMOUNT OF PENALTY.—Paragraphs (1) and (2) were revisedin their entirety by section 10106(b)(2)

Total Non-elderly v. Total Non-elderly Uncovered: Before and After ACA

1

2

050,000

100,000150,000

200,000250,000

300,000

Series2Series1

Source: Urban Institute analysis, HIPSM 2011.

What is a natural right?

“There is at least one natural right, the equal right of all men to be free (175)”

Are they free?

“When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefitted from their submission”

Mutuality of Restrictions

“The rules may provide that officials should have authority to enforce obedience and make further rules, and this will create a structure of legal rights and duties (185)”

“The obligation is due to the cooperating members of the society as such and not because they are human beings on whom it would be wrong to inflict suffering (185)”

The Worry

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Commerce Clause from the Constitution

The Worry

http://www.politico.com/news/stories/0312/74324_Page2.html

Commerce Clause

Commerce Clause

The Textualist“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means” (Scalia 23).

When you ask someone, “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway

The Worry

http://www.politico.com/news/stories/0312/74324_Page2.html

GENERAL VERRILLI: You're going — in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we've obligated ourselves so that people get health care.

JUSTICE SCALIA: Well, don't obligate yourself to that. Why — you know?

GENERAL VERRILLI: Well, I can't imagine that that — that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm.

The Individual Mandate promotes its adherents’ natural right of being equally free