Remember how an adviser to the federal Department of Health and Human Services said the department would have to “get creative” on funding federal health insurance exchanges, because states were refusing to create their own and ObamaCare provides no source of funding for federal exchanges? Well, HHS released its very creative response in a Friday news dump today, and the answer is "user fees" of 3.5 percent on all health insurance plans sold through federal exchanges.
But is that a little too creative? Does HHS have the authority to tax health premiums in its exchanges? Here's what the department's proposed regulation says:
Federally-facilitated Exchange user fees: Section 1311(d)(5)(A) of the Affordable Care Act contemplates an Exchange charging assessments or user fees to participating issuers to generate funding to support its operations. As the operator of a Federally-facilitated Exchange, HHS has the authority, under this section of the statute, to collect and spend such user fees. In addition, 31 U.S.C. 9701 provides for an agency to establish a charge for a service provided by the agency. Office of Management and Budget Circular A-25 Revised (“Circular A-25R”) establishes Federal policy regarding user fees and specifies that a user charge will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public. In this proposed rule, we establish a user fee for issuers participating in a Federally-facilitated Exchange.
I don’t know anything about 31 U.S.C. 9701 or Circular A-25R. But here’s the Section 1311(d)(5)(A) language upon which they rely:
NO FEDERAL FUNDS FOR CONTINUED OPERATIONS.—In establishing an Exchange under this section, the State shall ensure that such Exchange is self-sustaining beginning on January 1, 2015, including allowing the Exchange to charge assessments or user fees to participating health insurance issuers, or to otherwise generate funding, to support its operations.
A few thoughts:
A key committee in the Michigan legislature has voted down a proposal to create one of ObamaCare’s health insurance “exchanges.” The Speaker of the Michigan House pronounced a state‐run Exchange dead:
It was my hope the committee would find that a state‐run exchange afforded us more control over the unacceptable over‐reach by the federal government regarding the health care of Michigan citizens. After due diligence, however, it is clear that there were too many unanswered questions for the committee to feel comfortable with a state‐run exchange and we will not have one in Michigan…
The committee apparently was not able to get the answers to key questions or receive assurances about major concerns regarding costs for Michigan taxpayers, the ability to adopt a model the federal government wouldn’t ultimately control or the ability to protect religious freedom for Michigan citizens. Because the committee could not be assured that a state exchange was the best way to protect Michigan’s citizens, it is understandable why they did not approve the bill.
Under the terms of ObamaCare, Michigan’s refusal to create an Exchange exempts all Michigan employers from the law’s employer mandate, which imposes penalties of up to $2,000 per worker per year.
It exempts, by my count, 429,000 Michigan residents from the law’s individual mandate — a tax of $2,085 on families of four earning as little as $24,000.
And it gives the state, those employers, and those individual residents standing to file lawsuits to stop the IRS from ignoring the clear language of the law and imposing those taxes on them anyway.
Here’s some ObamaCare implementation news from around the interwebs:
- “Minnesota Facing Bigger Bill For State’s Health Insurance Exchange”: Kaiser Health News reports Minnesota has increased its spending projections for operating the state’s ObamaCare Exchange by somewhere between 35 – 80 percent for 2015. Spending on the Exchange will rise by another 19 percent in the following year.
- The Wall Street Journal defends the 25 – 30 states that aren’t gullible enough to create an Exchange and therefore take the blame for ObamaCare’s higher‐than‐projected costs.
- Arizona Gov. Jan Brewer ® has announced she will not implement an Exchange. That creates another potential state‐plaintiff, millions of potential employer‐plaintiffs, and (by my count) 430,000 potential individual plaintiffs who could join Oklahoma attorney general Scott Pruitt in challenging the IRS’s illegal ObamaCare taxes. It also means that Arizona can start luring jobs away from tax‐happy California. There are four Hostess bakeries in California that might be looking to relocate.
- I’m enjoying a friendly debate with The New Republic’s Jonathan Cohn and University of Michigan law professor Samuel Bagenstos over whether the those taxes really do violate federal law and congressional intent (spoiler alert: they do). I owe Bagenstos a response.
- PolitiFact Georgia rated false my claim that operating an ObamaCare Exchange would violate Georgia law. I explain here why it is indeed illegal for Georgia (and 13 other states) to implement an Exchange.
- ThinkProgress.org reports, “Romney’s Transition Chief Is Encouraging States To Implement Obamacare.” A better headline would have been, “Government Contractor Encourages More Government Contracts.”
- The Washington Examiner editorializes, “In California…state regulators have warned…insurance premiums will rise by as much as 25 percent once the exchange comes online…That’s the best‐case scenario.” And, “In 2014, seven Democratic Senate seats will be up for grabs in states Mitt Romney carried (Alaska, Arkansas, Louisiana, Montana, North Carolina, South Dakota and West Virginia). Unless Obama’s HHS bureaucrats pull off an unprecedented miracle of central planning, Obamacare could well sink Democrats again in 2014, the same way it did in 2010.”
Oklahoma Attorney General Scott Pruitt has filed a lawsuit challenging the Internal Revenue Service’s unlawful attempt to impose ObamaCare’s taxes on exempt employers and individuals. (Jonathan Adler and I plumb this issue in our forthcoming Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.”)
An article in the current issue of Business Insurance cites a couple of experts on the potential impact of the lawsuit:
While the ramifications of the suit pending in the U.S. District Court in Muskogee, Okla., are huge, the challenge brought last month has gotten little attention…
What is clear is that the outcome of the lawsuit could be crucial for the future of the health care reform law, observers said.
If premium subsidies are not available in federally established exchanges, “No one would go to those exchanges. The whole structure created by the health care reform law starts to fall apart,” said Gretchen Young, senior vice president‐health policy at the ERISA Industry Committee in Washington.
“The health care reform law would become a meaningless law,” added Chantel Sheaks, a principal with Buck Consultants L.L.C. in Washington.
Roll Call reports that if President Obama wins re‐election, House and Senate Republicans will hold votes on rescinding his illegal IRS rule that unlawfully taxes employers and individuals in the 30 or so states that do not create their own health insurance exchanges:
House Republicans are opening a new front in their drive to derail the 2010 health care overhaul, using an expedited legislative procedure to upend targeted parts of the law…
Republican leaders are preparing to launch the effort during the post‐election session that begins Nov. 13.
The resolution backed by Rep. Darrell Issa, the California Republican who heads the Oversight and Government Reform Committee, and Rep. Scott DesJarlais, a Tennessee Republican and the measure’s chief sponsor, is meant to nullify the upcoming IRS rule authorizing the distribution of subsidies through tax credits in every state, even the 35 that have not yet established state health care exchanges…
House leaders plan to bring the resolution to a vote during the lame‐duck session if Obama wins re‐election but will lay the groundwork for using the budget reconciliation process to strike parts of the law instead if former Massachusetts Gov. Mitt Romney wins, Republican aides said.
The resolution aimed at the IRS rule is the first in a series of Republican initiatives intended to block parts of heath care law if Obama is given a second term, a senior Senate Republican aide said.
“If Obama wins, you will see more of them. If Romney wins, you will see fewer,” said the Senate Republican aide, who added that even if such resolutions ultimately fail, they could require Democrats to cast votes that could pose re‐election problems in 2014.
I don’t see why they wouldn’t hold the vote regardless of the outcome of the election. President RomneyCare would probably need some reminding that his own party is serious about repealing ObamaCare.
Jonathan Adler and I first called attention to the IRS’s ploy here, and we’ve been hammering away at it here, here, here, here, here, and here. If you really want to nerd out, read our forthcoming Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.” Oklahoma’s attorney general has filed a lawsuit challenging the IRS’s illegal ObamaCare taxes.
John Goodman says stopping the IRS’s illegal ObamaCare taxes could deal “a fatal blow to ObamaCare.”
Last Friday, House Oversight Committee chairman Darrell Issa (R‑CA) and colleagues sent a letter to Treasury Secretary Timothy Geithner and Internal Revenue Service Commissioner Douglas Shulman accusing Treasury of “either willfully misleading the Committee or…purposefully withholding information that is essential to the Committee’s oversight effort.”
As Jonathan Adler and I document in our forthcoming Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” the IRS has announced it will impose ObamaCare’s taxes on employers and individuals whom Congress expressly exempted from those taxes, and will send potentially hundreds of billions of taxpayer dollars to private health insurance companies, also contrary to the plain language of the statute. Oklahoma attorney general Scott Pruitt has filed a legal challenge to the IRS rule that imposes those illegal taxes.
On August 20, the committee sent IRS commissioner Shulman a letter requesting “all legal analysis, internal or external, conducted by the IRS which authorizes IRS to grant premium‐assistance tax credits in federal Exchanges,” and “all documents and communications between IRS employees and employees of the White House Executive Office of the President or any other federal agency or department referring or relating to the proposed IRS rule or final IRS rule.”
When Treasury responded for the IRS on October 12, according to committee member Rep. Scott DesJarlais (R‑TN), it “failed to include a single document, memorandum, communication, or email created before the publication of the proposed rule on August 17, 2011” — i.e., when all the interesting discussions would have occurred. The committee’s second letter complains, “Treasury did not provide a single piece of evidence to support its claim that IRS complied with the standard process when issuing this rule.”
Thus, the committee threatened, “If you do not provide all of the requested information by Thursday, October 25, 2012, the Committee will consider the use of compulsory process.” Developing…
For more on this issue, see here, here, here, here, here, here, and here.
At a packed Cato Institute briefing on Capitol Hill yesterday, Jonathan Adler and I debated ObamaCare expert Timothy Jost over an admittedly wonky issue that nevertheless could determine the fate of ObamaCare: whether Congress authorized the IRS to subsidize health insurers, and to tax employers and certain individuals, in states that refuse to establish one of ObamaCare’s health insurance “exchanges.”
I want you, dear Cato@Liberty readers, to help us get to the bottom of it.
Adler and I claim that Congress specifically, repeatedly, and unambiguously precluded the IRS from imposing those taxes or issuing those subsidies through federal “fallback” Exchanges. We maintain the below video shows ObamaCare’s chief sponsor and lead author – Senate Finance Committee chairman Max Baucus (D‑MT) – admitting it. Jost says Baucus’s comments have “absolutely nothing” to do with the matter. You be the judge, and tell us what you think.
A bit of background will help to frame what’s happening in the video: Both sides agree this issue hinges on whether the statute authorizes “premium assistance tax credits” through both state‐created and federal Exchanges, or only state‐created Exchanges. The video is from a September 23, 2009, Finance Committee markup of ObamaCare. In it, Baucus rules out of order a Republican amendment on the grounds that medical malpractice lies outside the committee’s jurisdiction. Sensing a double‐standard, Sen. John Ensign (R‑NV) notes that Baucus’s underlying bill directs states to change their health insurance laws and to establish Exchanges, matters which also lie outside the Finance Committee’s jurisdiction, and asks why aren’t those provisions also out of order. Okay, go.
I might note that these are the only comments anyone has unearthed from ObamaCare’s legislative history that bear directly on the question of whether Congress intended to authorize tax credits in federal Exchanges.
Baucus’s response is hardly a model of clarity. But I can see no possible interpretation other than Baucus is admitting that (A) the statute makes tax credits conditional on states establishing an Exchange, and therefore does not authorize tax credits through federal Exchanges, and (B) that this feature was essential for the Senate’s tax‐writing committee to have jurisdiction to legislate in the area of health insurance.
But maybe I’m wrong. What do you think Baucus is saying? Since we don’t enable comments on Cato@Liberty, post your interpretation here on the Anti‐Universal Coverage Club’s Facebook page. Or post it on your own blog and send me a link.
For more on this issue, see what Adler and I have written for the law journal Health Matrix, the Wall Street Journal, USA Today, the Health Affairs blog, and National Review Online.
Update (August 22, 2014): I blogged over at DarwinsFool.com that I have changed my mind on the Baucus‐Ensign colloquy. Not that it matters much. The D.C. Circuit placed no weight on Baucus’ comments and ruled for the plaintiffs anyway.