Legal Lode: A Mandatory Story

Four years ago, Democratic presidential primary contenders Barack Obama and Hillary Clinton had differing views on individual mandate-based healthcare plans. Obama simply called for assuring that parents bought private insurance for their children. He opposed individual mandates for adults until cost controls drove down insurance rates. Clinton favored an immediate and universal requirement that everyone buy private insurance.

In November, the U.S. Supreme Court agreed to consider a landmark constitutional challenge to the legislative highlight of President Obama’s first term: the health care overhaul. The pivotal issue is whether Congress has the power, under its constitutional authority to regulate commerce, to require virtually every individual to obtain health insurance. Opponents of the health care law argue that the federal government can’t force anybody to buy insurance or, for that matter, any product or service.

On the contrary, Congress has required Americans to buy a health insurance plan. Since 1966, worker paychecks have reflected a deduction for Medicare, no matter what any individual employee personally wanted. But how far can lawmakers go? Last September, a federal appeals court judge asked lawyers at oral argument whether the government could compel people to buy broccoli because it is healthy. He ended up writing an opinion upholding the health care law, noting that “a direct requirement . . . to purchase any product or service seems an intrusive exercise of legislative power” but, he conceded, more an exercise in “political judgment” and not fodder for judicial second-guessing.

The Tea Party calls the individual mandate in the health care law “a complete perversion of the liberties our founders fought and died to protect.” Last year, a local chapter of the Tea Party in Gwinnett County, Ga., condemned yet another alleged abuse of government power — mandatory residential trash collection.

Hmmm! Now that you mention it, mandatory garbage collection can be a useful template for obligatory, public-sponsored services. But, it is misleading to call it a “mandate.” Given the excessive packaging material used these days, for example, even the most efficient composters and best recyclers will still generate some waste each week.

Volume-based waste collection systems can and do reward low-volume generators, but it is nonsense to think that any household or business regularly produces no waste. Even zero-waste zealots take full advantage of the panoply of integrated solid waste management services. Local governments simply regulate how they are delivered and paid for.

Where the program exists, payment is often linked to water or electric bills, making it easier for a government service provider to penalize delinquent households by shutting off all utility service. Sometimes an unpaid bill, including accumulated administrative fees, interest and penalties, can end up as a lien recorded against the property itself. In Oakland, Calif., the lien amount can eventually be transferred to the county tax rolls for inclusion on the next property tax bill. On the other hand, Monterey County, Calif., offers an exemption from mandatory collection if the property is undeveloped, if all solid waste produced on the property is recycled or composted, or if a long, narrow, or steep driveway interferes with the proper and safe operation of collection equipment. Greene County, Ala., has mandatory collection, but provides the service for free to individuals whose only income is social security.

Not everyone agrees. Last year, a Pennsylvania legislative advisory committee considered and later abandoned a proposal that all 3,200 units of local government in the commonwealth mandate collection of garbage and recyclables at taxpayer expense. Many panel members concluded that, as much as residents hated illegal dumping, mandatory pick-up represented neither appropriate nor effective government activity.

At least one locality can’t seem to make up its mind. The city of Lynnwood, Wash., has “Optional Mandatory Refuse Collection.” Mun. Code Chap. 7.06. Adopted in 1999, the oddly titled program simply allows the city’s nuisance abatement officer to order the cleanup of accumulated refuse on private property.

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].