Posted on 05/14/2018 6:35:57 AM PDT by Kaslin
In one of its most controversial decisions, the Supreme Court in 2012 upheld the constitutionality of a provision in the Affordable Care Act (ACA) mandating individuals purchase qualifying health insurance or else pay a fine, with Chief Justice John Roberts casting the deciding vote in favor of the law. However, nearly six years later, a provision included in the Tax Cuts and Jobs Act, passed mostly along party lines in December 2017, may soon force Roberts to reevaluate his decision, potentially ending the health care law without a single vote being cast in Congress.
In Roberts’ majority opinion, which saved the ACA from what appeared to be its certain death, he reasoned the federal government has the authority to impose an individual health care mandate because, despite language in the ACA calling the mandate a penalty, it’s effectively a tax and Congress has the constitutional authority to impose taxes. (Currently, those who fail to purchase a “qualifying” health insurance plan are subject to a penalty of $695 per adult, up to a family maximum of $2,085, or 2.5 percent of income, whichever is greater.)
Interestingly, Roberts joined the Supreme Court’s more conservative justices in rejecting the primary argument made by the Obama administration and the liberal justices, who claimed the federal government has the authority to impose a mandate to purchase health insurance under the Constitution’s “commerce clause” — a provision granting to Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Roberts’ claim that the individual mandate is a tax was controversial, to say the least, but it may have opened the door to the law’s ultimate demise in a surprising way: If the individual mandate is only constitutional because it’s a tax, then the removal of the penalty from the law should gut the mandate of its constitutionality. And that’s precisely what happened in December, when Congress passed the Tax Cuts and Jobs Act.
One of the provisions included in Republicans’ tax reform bill will end the monetary penalty imposed by Obamacare in January 2019 without ending the mandate to purchase health insurance — something Congress likely couldn’t have done under the budget reconciliation rules used to pass the tax bill. By removing the Obamacare fine — or, according to Roberts, the “tax” — the Affordable Care Act likely became, or will become, unconstitutional under the opinion issued by Roberts and the dissent published by four other justices in the 2012 case.
The reason the entire health care law could be determined unconstitutional if the individual mandate is struck down is that the Supreme Court has determined in previous cases that when a single provision of a law is ruled unconstitutional and it’s clear Congress wouldn’t have passed the bill without that provision, the entire law must also be thrown out.
Former Justice Antonin Scalia explained this precedence in the dissent he authored in the 2012 case that upheld Obamacare’s constitutionality, writing, “even if the remaining provisions can operate as Congress designed them to operate, the Court must determine if Congress would have enacted them standing alone and without the unconstitutional portion. If Congress would not, those provisions, too, must be invalidated.”
Because Congress itself declared the individual mandate was “essential” to the entire law’s operation when the Affordable Care Act was passed, a reasonable case could be made that Congress would never have passed the ACA without the individual mandate, and thus the Supreme Court should strike down the entire law if it rules the mandate unconstitutional.
This argument, which was first brought to our attention by former Virginia Attorney General Ken Cuccinelli, who was previously one of the leaders in the legal battle against Obamacare, is gaining traction and could soon result in yet another Obamacare showdown in the Supreme Court. On April 23, 20 states and several other plaintiffs filed suit in the U.S. District Court for the Northern District of Texas alleging the Obamacare individual mandate is now unconstitutional and that if the mandate is determined to be unconstitutional, the entire law must also be thrown out.
If forcing Americans to buy health insurance is “essential” to the ACA, then the unconstitutionality of that “essential” mandate could very well sink the entire health care law, accomplishing in an instant what the Republican-led Congress has failed to achieve since taking power following the 2016 elections.
Indeed. Without the individual mandate, the majority will opt not to buy the over-priced, high-deductible coverage. The insurers will collapse along with the exchanges. I hope there’s a plan B to save the industry.
I don’t think the employer mandate has been struck down. If they could get rid of the employer mandate we would see an even higher employment rate and more importantly, wage growth. Why is congress waiting?
We are currently 64. We abandoned health care the day Obamacare became the law of the land (1/1/2014). When the penalty kicked in, we just made sure our TAXABLE income enabled us to take the “unaffordability” exemption so we pay not penalty. We also had to smoke a few cigars so we could say we were “tobacco users” so the bronze plan would be expensive enough. :)
They want it to implode so bad that everyone will want something else. Phase one is the individual mandate. The rest will take care of itself.
And I hope that this "Plan B" is allowing insurers and purchasers the Freedom to offer, and to purchase, whatever sorts our individual or family needs. No "Plan" needed. No Government needed. Just stay the _____ out of it, and let us insure ourselves without your DC "concern for our well-being"
I hope there’s a plan B to save the industry.
Or maybe the government should do nothing and let the market place work it out. I am a fan of the Invisible Hand but it is a wild ride some time, but not as wild as when the government is involved.
Because those who crave power go into politics. Once in power, they are in the business of acquiring and accruing more power... they do NOT let go of any avenue of control easily, even when it would make things much better for all Americans.
Remember the Gay Marriage fight, with two First Amendment issues butting heads? Free Exercise of Religion up against Equal Treatment. Supreme Court precedent mandates that government and the courts avoid such conflicts whenever possible. All Congress had to do to avoid the entire battle was to stop treating married people differently from unmarried people (for taxes, insurance, estates, etc), and the entire debate ends in a heartbeat. More Equality! More Freedom! Gay folks would have no claims of unfair treatment left to make. Yay! Easy, right? But no... Congress is not in the business of giving up even incredibly minor avenues of control, like "encouraging marriage and families", even when it could prevent a massive Constitutional crisis. Instead, Congress allowed the battle to go to SCOTUS, and predictably, the Christians got handed the loss by the usual cast of Leftist characters on The Bench.
Nice how he waited to end to acknowledge this was Cuccinelli’s old play.
Compelling reading — four years ago.
No, removing the tax penalty will not invalidate the whole law.
Having a unified Republican government did not invalidate the tax this year, who on earth is so naive as to think the courts are going to save us now?
Roberts will twist himself into an eleven-dimensional pretzel to find a shadow of a penumbra that will justify him saving Ocare again.
Why would getting rid of the employer mandate lead to wage growth?
“Why is congress waiting?”
Big Media and our domestics enemies have convinced “Congress” that their biggest enemy in the world DJT will be removed from office, and their god the Fraud’s policies will once again be enacted on America.
The government does not have the right to force anyone to buy something.
I don’t believe there is such a thing as retroactive unconstitutionality. The law was ruled constitutional based on the tax laws in effect at the time. Now that those laws have been changed it doesn’t invalidate the laws passed that used them like health care.
This writer is stretching things too far. Not that I don’t wish it to be true.
WHAT?!! It was NEVER constitutional!
I have always argued that the government’s role in health insurance should be to guarantee that a person, once insured, will always be able to renew insurance without having to take another physical and would get the standard rate offered to all others of his particular age and sex (with possible adjustments for smokers, but not much else).
Couple that guarantee with a one-time grace period where everyone can sign up for a policy without a physical. That is, they would each be able to purchase a policy priced for their age and sex only, no pre-existing conditions to be considered in the pricing. That one-time guarantee would kick in on passage of the law for most of us, and for each individual when they turn 21 thereafter.
And finally, if someone decides not to take insurance during the grace period, they would bear the risk of getting sick and of not being able to get insurance later without paying extra for a rider for a pre-existing condition or, alternatively, having that condition excluded from their coverage. If they, however, get a clean policy after a physical, they can join the group of everyone else guaranteed insurability the rest of their lives so long as they maintain a policy throughout.
Comments?
I have always argued that the government’s role in health insurance should be to guarantee that a person, once insured, will always be able to renew insurance without having to take another physical and would get the standard rate offered to all others of his particular age and sex (with possible adjustments for smokers, but not much else).
Couple that guarantee with a one-time grace period where everyone can sign up for a policy without a physical. That is, they would each be able to purchase a policy priced for their age and sex only, no pre-existing conditions to be considered in the pricing. That one-time guarantee would kick in on passage of the law for most of us, and for each individual when they turn 21 thereafter.
And finally, if someone decides not to take insurance during the grace period, they would bear the risk of getting sick and of not being able to get insurance later without paying extra for a rider for a pre-existing condition or, alternatively, having that condition excluded from their coverage. If they, however, get a clean policy after a physical, they can join the group of everyone else guaranteed insurability the rest of their lives so long as they maintain a policy throughout.
Comments?
“(with possible adjustments for smokers, but not much else).”
How about “possible adjustments” for those with a family history of diabetes, heart disease, obesity, sickle cell anemia, leukemia, breast cancer, colon cancer, prostate cancer, kidney disease,tay sachs, glaucoma, and every other malady? F this demonization and isolation of smokers.
Logic killing stupidity by the day life is good.
The employer mandate in obamacare forces small companies to keep their workers under 30 hours a week. Remember, obamacare said that if you’re an employer and you work someone over 30 hours you have to give them full benefits i.e. healthcare coverage. As a result a lot of people in the service industry, waiters and restaurant workers, were cut to 30 or less. If the mandate went away, then workers could get more hours and have higher wages.
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