Monday, December 10, 2012

A potential legal challenge to the Affordable Care Act flying under the radar


Though ObamaCare survived it first Supreme Court challenge back in June in National Federation of Independent Business v. The Department of Health and Human Services , there are no fewer than 40 other legal challenges to the law currently in the court system. And though the ObamaCare penalty/tax for non-participation has not yet been applied (starts in 2014), the Uniformity clause in the Constitution may provide a new opening by which the law may be shot down once it is.

We've broken down the linked Wall Street Journal article in bullet form for easier consumption regarding how it is this may go down:

1. The Supreme Court ruled that Congress could not enforce the individual mandate in ObamaCare via the "commerce clause".

2. However, SCOTUS did rule that the individual mandate could be enforced by Congress as the penalty for not signing up for ObamaCare was not a "penalty" rather a "tax" which is enforceable by Congress.

3. SCOTUS also ruled that individual states were not compelled to enroll in ObamaCare's Medicaid expansion program nor are they compelled to set up the health insurance exchanges to assist individuals in purchasing health insurance. Thus far, 7 states (with more likely to follow) have chosen this route.

4. As written in the law, individuals who do not sign up for health insurance will be subjected to a "tax" which might make economic sense if the tax burden is less than the cost of health insurance.

5. If an individual wishes to participate in the Medicaid expansion program to acquire health insurance but resides in a state that has decided to "opt out", then that person will be subjected to the ObamaCare tax.

6. The Uniformity clause in the Constitution (Article 1, Section 8, Clause 1) requires the tax to be "be uniform throughout the United States."

7. And although the court has upheld as "uniform" taxes that affect states differently in practice, precedent makes clear that a permissible tax must "operate with the same force and effect in every place where the subject of it is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare is an ill-conceived and poorly-written law that, given the proper court challenges and courts that merely judge instead of legislate, may very well collapse under its own weight.


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