Tag: ppaca

New Constitutional Amendment Would Abolish Obamacare’s “Mandate Tax”

I’ve been known to say that Chief Justice Roberts’s transmogrification of Obamacare’s individual mandate created a “unicorn tax” – a creature of no known constitutional provenance that’ll never be seen again. Well, here to ensure that more than congressional discretion prevents any future tax on non-purchases is a constitutional amendment that was recently floated by Congressman Steven Palazzo (R-MS). 

Rep. Palazzo has introduced H.J. Res. 28, which would overturn last summer’s Supreme Court decision that, for the first time ever, under certain limited conditions, granted Congress the power to tax inaction. The amendment reads, in its entirety, as follows: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.”

Short and sweet and, with the mandate-tax set to take effect this next January, now is the time to act to prevent about 11 million mostly middle-class Americans from getting hit.  Indeed, the CBO estimates that 70 percent of those currently without insurance and earning less than $94,000 a year will get slapped with the mandate-tax that goes into effect in 2014. That doesn’t sound like a good, let alone fair, way of either “protecting patients” or ensuring “affordable care,” but hey, I’m just a constitutional lawyer.

Oh, and of course this amendment would prevent all other possible mandate-taxes as well, not just in the field of health care. 

It’s sad that we’ve come to this – the Constitution already prohibits taxes on inactivity – but of course there are many things that the government does (and which courts have allowed it to do) that are plainly unconstitutional. H.J. Res. 28 is an excellent start. 

For examples of more great ideas on how to rein in our out-of-control government, see Randy Barnett’s “Bill of Federalism” and the Compact for America.

ObamaCare’s Priceless Warm Glow

Ed Kilgore says ObamaCare opponents don’t care about cost-benefit analyses:

many of them just can’t bring themselves to even notice that…Obamacare with its Medicaid expansion, health care exchanges, and regulatory mandates [does] actually provide health coverage to people in exchange for the money and the “liberty” surrendered.

Speaking of, what is the exchange rate between liberty and “liberty”?

But about those benefits. What benefits do broad-based expansions of health insurance, like ObamaCare, actually provide? Aside from giving Kilgore a warm glow, that is.

It turns out there has been only one—one!—scientifically rigorous study of that question. The Oregon Health Insurance Experiment found Medicaid coverage confers modest improvements in self-reported health and financial security. The first batch of that study’s results appeared more than a year after Congress enacted ObamaCare. And there remains to this day absolutely zero evidence that Medicaid or other broad-based expansions of health insurance buy us the most health and financial security per dollar spent.

Then again, the Oregon Health Insurance Experiment did not attempt to measure the value of the warm glow that Kilgore and others derive from Medicaid and ObamaCare, one that appears to be worth trillions of dollars of other people’s money.

Ted Olson on John Roberts’ Saving Construction of ObamaCare

At a recent legal conference, former Solicitor General (and Cato Institute board member) Ted Olson offered this slightly nerdy take on Chief Justice John Roberts’ saving construction of ObamaCare’s individual mandate:

Roberts’ support for the individual mandate brings to mind the Higgs boson — it can’t be seen, it disappears upon occurrence, and it’s the God particle that controls everything in the universe.

Hat tip: Louise Bennetts.

ObamaCare’s Triple-Digit Premium Hikes Dramatize the Need for Repeal

In 2010, the Obama administration excoriated health insurance companies for “rate hikes as high as 39 percent.” HHS Secretary Kathleen Sebelius wrote:

This is unacceptable…

President Obama has offered a health insurance reform proposal to help working families and small business owners.  It will hold insurance companies accountable by laying out common-sense rules of the road to keep premiums down…

Reform will change the rules and help stop exorbitant increases.

And the President’s plan will help reduce costs…

According to the Chicago Sun-Times, that double-digit rate increase “helped dramatize the need for regulation.”

That episode came to mind this morning when I read about a survey of health insurers that shows ObamaCare will neither “keep premiums down” nor “stop exorbitant increases” nor “reduce costs”:

The survey, fielded by the conservative American Action Forum and made available to POLITICO, found that if the law’s insurance rules were in force, the premium for a relatively bare-bones policy for a 27-year-old male nonsmoker on the individual market would be nearly 190 percent higher…

Most other studies have tried to estimate average premium increases, which have ranged anywhere from negligible to 85 percent and higher. This survey looks at individual examples in specific markets to show the itemized impact of the major Obamacare reforms…

On average, premiums for individual policies for young and healthy people and small businesses that employ them would jump 169 percent, the survey found.

These findings are in line with projections by neutral observers and even ObamaCare supporters like MIT economist Jonathan Gruber that the law will increase premiums for some individuals and small businesses by more than 100 percent. 

If double-digit premium increases dramatized the need for regulation, do triple-digit increases dramatize the need for its repeal?

Politico offers a strange rationalization for these rate hikes:

The increase will most likely be substantial for “a slice of the younger population,” said Massachusetts Institute of Technology health economist Jon Gruber, a supporter of the health law who has studied its impact on premiums.

And those are the people who, before Obamacare, benefited from insurers’ ability to charge older, sicker people much higher rates — or deny them coverage altogether — practices that have kept premiums for the young low.

Set aside the fact that these rate hikes effectively tax young workers to subsidize older workers who generally have higher incomes. According to this theory – I can’t tell if it came from Gruber or Politico – those young workers are today unjustly enriched because they’re not being robbed.

On ObamaCare’s Discriminatory Subsidies, Brewer Bows When Arizona Should Keep Slugging

Arizona Gov. Jan Brewer (R) recently set aside her vociferous opposition to ObamaCare’s costly Medicaid expansion by announcing she will support implementing that expansion in Arizona. A significant factor in her reversal, she claimed, was that if Arizona did not expand its Medicaid program, then some legal immigrants would receive government subsidies while U.S. citizens would get nothing.

Brewer’s analysis of this “immigration glitch,” and her remedy for it, are faulty. Fortunately, she, Arizona’s legislature, and its attorney general have better options for stopping it.

An odd and unforeseen result of the Supreme Court’s decision upholding ObamaCare is that, in certain circumstances, the law will now subsidize legal immigrants but not citizens. What triggers this inequity is a state’s decision to implement an Exchange – not the decision to opt out of the Medicaid expansion. (Even if a state implements both provisions, legal immigrants would still receive more valuable subsidies than citizens.) The good news is that states can therefore prevent this inequity simply by not establishing an Exchange. If Brewer wants to avoid this “immigration glitch,” there is no need to expand Medicaid. She already blocked it when she refused to establish an Exchange.

The bad news is that the Obama administration is trying to take away the power Congress granted states to block those discriminatory subsidies, and the punitive taxes that accompany them. Contrary to both the statute and congressional intent, the IRS has announced it will impose that witch’s brew in all states, even in the 32 that have refused to establish an Exchange.

Oklahoma attorney general Scott Pruitt has filed suit to stop that stunning power grab. If Brewer is serious about stopping the “immigration glitch,” the way to do it is by filing a lawsuit similar to Oklahoma’s, while adding a complaint that the Obama administration’s illegal subsidies also violate the Equal Protection clause.

Goldwater Attorney: ObamaCare-Compliant Exchange Would Violate Idaho’s Health Care Freedom Act

Idaho Gov. Butch Otter (R), who added Idaho to the multi-state challenge that sought to overturn ObamaCare as unconstitutional, now supports helping the Obama administration implement the law by establishing and funding a health insurance “exchange.” Exchanges are new government bureaucracies that enforce ObamaCare’s many regulations, channel billions in deficit-financed government subsidies to private health insurance companies, and help the IRS penalize individuals and employers who fail to purchase government-approved insurance. So far, some 32 states have refused to establish an Exchange themselves. If Idaho’s legislature authorizes an Exchange, they will make Idaho the only state where a Republican legislature and governor acted together to implement this essential piece of ObamaCare.

One could argue this is a debate Idaho shouldn’t even be having. Establishing an ObamaCare compliant Exchange would violate Idaho state law.

In a letter sent to Idaho legislators today, Goldwater Institute attorney Christina Sandefur explains, “establishing a PPACA state health insurance exchange in Idaho would conflict with the state’s Health Care Freedom Act.” Idaho’s Health Care Freedom Act protects the “right of all persons residing in the state of Idaho in choosing the mode of securing heatlh care services free from the imposition of penalties” including “any civil or criminal fine, tax, salary or wage withholding, surcharge, fee or any other imposed consequence.” Sandefur explains (as I have explained elsewhere), “State exchanges that conform to PPACA are inconsistent with this safeguard because they are the key vehicles for implementing the individual mandate tax,” as well as the penalties ObamaCare levies on employers under the employer mandate. Idaho’s Health Care Freedom Act forbids state officials or state-created non-profits from doing anything that helps to enforce such penalties: “No public official, employee, or agent of the state of Idaho or any of its political subdivisions, shall act to impose, collect, enforce, or effectuate any penalty in the state of Idaho that violates the public policy set forth in [this Act].” As a result, Sandefur writes, “Idaho public officials who operate exchanges would be violating state law,” and “the Attorney General is charged with taking legal action against those who do so.”

Otter himself signed the Health Care Freedom Act into law in 2010, and was the first governor in the nation to do so. The purpose of that Act was to prevent state officials from doing what Otter is now trying to do. “What the Idaho Health Freedom Act says,” Otter boasted at the time, “is that the citizens of our state won’t be subject to another federal mandate or turn over another part of their life to government control.” Yet he is now trying to subject Idaho residents to those mandates, and violating his own law to help the federal government implement ObamaCare. The best spin I can put on this is that Otter is getting some very, very bad advice about the Health Care Freedom Act and ObamaCare’s Exchanges.

The situation in Idaho is a replay of Arizona, which enshrined a similar Health Care Freedom Act in its Constitution. As Arizona officials were wrestling with whether to establish an Exchange, Sandefur and her Goldwater Institute colleagues threatened legal action if Arizona did so. That threat was likely a major factor in Gov. Jan Brewer’s (R) decision to oppose an Exchange.