Tag: individual mandate

NR: States Should Join Oklahoma, Challenge IRS’s $800b Power Grab

The IRS is attempting to tax, borrow, and spend more than $800 billion over the next 10 years without congressional authorization, and indeed in violation of an express statutory prohibition enacted by both chambers of Congress and signed into law by President Obama. 

In a new editorial, National Review calls on officials in 33 states to join Oklahoma attorney general Scott Pruitt in filing court challenges to this illegal and partisan power grab:

By offering the [Patient Protection and Affordable Care Act’s] subsidies in states that have not set up [health insurance] exchanges, the federal government is inflicting tax penalties on individuals and employers that go beyond even what Obamacare allows…

Pruitt v. Sebelius has been supplemented by a lawsuit filed last month by a group of small businesses and individual taxpayers also challenging the IRS’s authority to impose penalties outside of state-created exchanges…

Stopping the IRS from imposing punitive taxes where it has no legal power to do so should in fact be a popular and bipartisan issue, regardless of one’s opinions about the ACA itself…

Republican governors, attorneys general, and state legislators looking to use their offices to the significant benefit of the nation as a whole should be lining up to create a 30-state united front with Oklahoma. Scott Pruitt is fighting for the rule of law, and Republican governors might trouble themselves to give him a hand. 

Click here for information on an upcoming Cato policy forum on Halbig v. Sebeliusthe legal challenge filed by several small businesses and taxpayers.

California Officials Deliberately Mislead Public on Obamacare Rate Shock

Ever since Obamacare became law, I have been counseling states not to establish the law’s health insurance “exchanges,” in part because:

to create an Exchange is to create a taxpayer-funded lobbying group dedicated to fighting repeal. An Exchange’s employees would owe their power and their paychecks to this law. Naturally, they would aid the fight to preserve the law.

California was the first state both to reject my advice and to prove my point.

Officials operating California’s exchange–which the marketing gurus dubbed “Covered California“–recently and deliberately misled the entire nation about the cost of health insurance under Obamacare.

They claimed that health plans offered through Covered California in 2014 will cost the same or less than health insurance costs today. “The rates submitted to Covered California for the 2014 individual market,” they wrote, “ranged from two percent above to 29 percent below the 2013 average premium for small employer plans in California’s most populous regions.”

See? No rate shock. California’s top Obamacare bureaucrat, Peter Lee, declared his agency had hit “a home run for consumers.” Awesome!

Unfortunately, anyone who knows anything about health insurance or Obamacare knew instantly that this claim was bogus, for three reasons.

  1. Obamacare or no Obamacare, health insurance premiums rise from year to year, and almost always by more than 2 percent. So right off the bat, the fact that Covered California claimed that premiums would generally fall means they’re hiding something. 
  2. Obamacare’s requirement that insurers cover all “essential health benefits” will force most people who purchase coverage on the “individual” market (read: directly from health insurance companies) to purchase more coverage than they purchase today. This will increase premiums for most everyone in that market.
  3. Obamacare’s community-rating price controls (also known as its “pre-existing conditions” provisions) will increase premiums for some consumers (i.e., the healthy) and reduce premiums for others (i.e., the sick). So it is misleading for Covered California to focus on averages because averages can hide some pretty drastic premium increases and decreases.

Targeting the Tea Party Isn’t the IRS’s Most Egregious Abuse of Power

Not by a longshot. 

As Jonathan Adler and I explain in this law journal article, and as I explain somewhat more accessibly in this Cato paper, the IRS is trying to tax, borrow, and spend $800 billion in clear violation of federal law and congressional intent.

Yes, you read that right: $800 billion.

Questions for Secretary Sebelius

Secretary of Health and Humans Services Kathleen Sebelius has been making the rounds on Capitol Hill, testifying in favor of President Obama’s proposed budget and generally trying to assure members of Congress that all is well with ObamaCare implementation. Even supporters of the law are freaking out nervous, as I discuss here.

Since everyone else is pestering Sebelius with questions, I thought I would post some questions I would like to hear her answer.

Reason.com: ‘6 Reasons Why States Should Continue to Oppose ObamaCare’

Drawing from my white paper “50 Vetoes: How States Can Stop the Obama Health Law,” Reason’s Peter Suderman highlights six reasons why states should refuse to implement any part of ObamaCare. Here are two:

3. Refusing to create an exchange potentially protects a state’s businesses from the law’s employer mandate.Obamacare fines any business with 50 or more employees that does not offer health coverage of sufficient value—as determined by the federal government—$2,000 per employee (exempting the first 30 workers).  The employer penalties, however, are triggered by the existence of the law’s subsidies for private health insurance. And as Cannon notes, the text of Obamacare specifically states that those subsidies are only available in states that choose to create their own exchanges. The IRS has issued a rule allowing for subsidies in states that reject the exchanges, but a lawsuit is already under way to challenge it. 

4. States also have the power to protect as many as 12 million people from the law’s individual mandate—the “tax” it charges individuals for not carrying health insurance. Obamacare requires that nearly everyone maintain health coverage or pay a penalty—a “tax,” according to the Supreme Court’s decision upholding the law last year. But Obamacare also exempts individuals who would have to pay more than 8 percent of their household income for their share of their health insurance premiums. So if states bow out of the exchanges, and as a result the law’s private insurance subsidies are no longer available, then the mandate will no longer apply to the low and middle income individuals who would have to pay more than 8 percent of their income to get health insurance. Cannon estimates that if all 50 states were to decline to create exchanges, a little more than 12 million low and middle-income individuals would be exempt from the law’s mandate.

Ohio, Missouri Introduce the Health Care Freedom Act 2.0

Ohio Reps. Ron Young (R-Leroy Twp.) and Andy Thompson (R-Marietta), and Missouri Sen. John Lamping (R-St. Louis County), have introduced legislation—we call it the Health Care Freedom Act 2.0—that would suspend the licenses of insurance carriers who accept federal subsidies through one of the Patient Protection and Affordable Care Act’s (PPACA) health insurance Exchanges. At first glance, that might seem to conflict with or otherwise be preempted by the PPACA. Neither is the case. Instead, the HCFA 2.0 would require the IRS to implement the PPACA as Congress intended.

Here’s why. Under the PPACA, if an employer doesn’t purchase a government-prescribed level of health benefits, some of its workers may become eligible to purchase subsidized coverage through a health insurance “exchange.” When the IRS issues the subsidy to an insurance company on behalf of one of those workers, that payment triggers penalties against the employer. Firms with 100 employees could face penalties as high as $140,000.

Congress authorized those subsides, and therefore those penalties, only in states that establish a health insurance Exchange. If a state defers that task to the federal government, as 33 states including Missouri and Ohio have done, the PPACA clearly provides that there can be no subsidies and therefore no penalties against employers. The IRS has nevertheless announced it will implement those subsidies and penalties in the 33 states that have refused to establish Exchanges. Applying those measures in non-establishing states violates the clear language of the PPACA and congressional intent. See Jonathan H. Adler and Michael F. Cannon, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” Health Matrix: Journal of Law-Medicine 23 (2013): 119-195.

Whether legal or illegal, those penalties also violate the freedoms protected by the Health Care Freedom Amendment to Ohio’s Constitution, and Missouri’s original Health Care Freedom Act, which voters in each state ratified by overwhelming majorities. The Ohio (HB 91) and Missouri (SB 473) bills would protect employers and workers from those penalties, and thereby uphold the freedoms enshrined in Missouri statute and Ohio’s Constitution, by suspending the licenses of insurance carriers that accept those subsidies.

The question arises whether the PPACA would preempt such a law. It does not. The HCFA 2.0 neither conflicts with federal law, nor attempts to nullify federal law, nor is preempted by federal law.

The HCFA 2.0 concerns a field of law—insurance licensure—that has traditionally been a province of the states under their police powers. In preemption cases, courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009). Courts then must determine whether the state law in question is nevertheless trumped by express or implied federal preemption.

If ObamaCare Isn’t Vulnerable, Why Is the President Violating the Law to Save It?

From my oped in today’s Daily Caller, heralding the release of my new Cato white paper, “50 Vetoes: How States Can Stop the Obama Health Law”:

But the surest sign that Obamacare remains vulnerable is that the Obama administration is violating its own statute, congressional intent, and even a Supreme Court ruling in order to save the law.

In “50 Vetoes,” a study released today by the Cato Institute, I explain the administration is so afraid of a sticker-shock fueled backlash that it is preparing to spend more than $600 billion that Congress never authorized to numb consumers to the costs of this law. Along the way, the administration will impose roughly $100 billion in illegal taxes on employers and individuals (including some legal immigrants below the poverty level), and deny millions of individuals the right to purchase low-cost “catastrophic plans.”

To cement the law’s Medicaid expansion in place, the administration is also violating the Supreme Court’s ruling in NFIB v. Sebelius. The Court prohibited the federal government from coercing states into implementing the expansion. Yet HHS is still threatening every state with the loss of all federal Medicaid funds if they fail to implement parts of the expansion. These are not the actions of an administration that feels its health care law is secure.

Finally, supporters forget that President Obama and congressional Republicans have already repealed important parts of the law, including Obamacare’s third entitlement program — a long-term care program known as the CLASS Act, repealed as part of the “fiscal cliff” deal. President Obama is already repealing his law one provision at a time.

Obamacare supporters may scoff at repeal. But if vulnerable Democratic senators start hearing from their constituents about the chaos and sticker shock they experience later this year, the scoffing will cease.

Read the whole paper.