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Does the Health Care Law Impose an Unconstitutional Tax? by Barbara Anderson

This article is more than 14 years old.

As executive director of the taxpayer group that successfully fought the graduated income tax five times on the Massachusetts ballot, I am always alert to any violation of the constitutional mandate for a flat rate income tax. I'm not a lawyer, could be wrong — and far be it from me to discourage any grassroots activism — but opponents of the health insurance law will probably be wasting their time arguing that the new health insurance law is unconstitutional.

The flat rate tax means simply that we must all be charged the same income tax rate — presently 5.3% — on all income from the same source, i.e., wage & salary income. But some low-income people fall into the "no tax status" and pay no income tax at all. The rest of us get the same dollar-amount personal exemption which when applied to different income levels graduates the income tax "effective rate"; the courts have ruled that as long as the
rate applied to taxable income is the same, you can have reasonable
exemptions and deductions which create different levels of taxable income.

The only possible constitutional argument I see might be that if someone does not purchase health insurance and loses his personal exemption as a penalty, he is paying the 5.3% rate on a different level of taxable income than the rest of us.

Also: a tax is usually something that all must pay toward general government costs. It is certainly true that young healthy people are forced to pay even if they never use the health care system, and are therefore susidizing someone else's care. This concept is what insurance in general is all about: you pay for home insurance, may never use it; auto insurance, may never have an accident. The last one is forced because you need to be covered in case your car hurts someone else. Health insurance is somewhat
different, and here's why.

Everyone gets health care. Our society has determined (and the federal government has mandated) that no one will ever be turned away. So while you may be willing to take a chance on not having insurance, it's not much of a risk; you'll be taken care of by the insured through their premiums (which must be big enough to cover you if you need care) or by the taxpayers who pick up some of the cost if the system can't afford your care.

One solution might be to have everyone who chooses not to buy health insurance sign a release, telling medical personnel not to treat you, simply let you suffer and die. Or, you can get treatment but will be billed for every cent of it, with the cost taken from your pay for the rest of your life if necessary, with a lien on your house, whatever it takes for you to pay your own way. I say this only to simplify the concept, as I see it: no one is born with the right to be taken care of by everyone else, at no cost to himself, though this was the status quo before the mandatory insurance law. Since none of us wants to see dying bodies lying ignored on the steps
of the local emergency ward, the only fair solution is to make everyone at least acknowledge some personal resonsibility for his own care should it be necessary.

Barbara Anderson, Executive Director, Citizens for Limited

This program aired on July 10, 2007. The audio for this program is not available.

Martha Bebinger Twitter Reporter
Martha Bebinger covers health care and other general assignments for WBUR.