I have sent the following letter to the editor to the Wall Street Journal, commenting on an article, ObamaCare's Next Constitutional Challenge, which can be read here.
To the editor:
Challenging the constitutionality of recent Medicaid legislation, Richard Epstein and Mario Loyola claim that it is coercive for “the federal government … [to] use its power to tax and spend to bludgeon all states into conformity.”
Their basic mistake is to lump together the very separate powers to tax and to spend and refer to them as a “power” in the singular. Taxes are always collected at the point of the sword; they are always based on coercion. If the coercive nature of the way the government gets it money is considered to render its expenditures coercive, all government expenditures would be coercive.
There is a fundamental difference between a conscripted army and an all volunteer army. A drafted army recruits by applying coercion (threats of fine, imprisonment, or—in some countries—execution) to the individuals being recruited. An all volunteer army offers inducements to serve, and those who do not serve do not receive these inducements. The inducements are financed with tax money extracted coercively from everybody, but this does not mean that the volunteer soldiers were coerced into serving.
Epstein and Loyola correctly note that “it is fundamentally wrong to think of coercion as a matter of degree.” Later courts have correctly ignored the Supreme Court’s unwise suggestions to the contrary in South Dakota v. Dole (1987), and District Court Judge Roger Vinson was correct to uphold the Medicaid provisions of the recent legislation.
Paul F. deLespinasse, Ph.D.