What Happened To The Mandates?
One of the more pernicious provisions of the ObamaCare bills working their way through Congress is the mandate to purchase health care insurance. It’s probably unconstitutional (arrogating to the federal government an unprecedented power to force Americans to purchase a service or product), but that isn’t going to stop it from being shoved down our collective throats anyway. According to a DKos blogger, however, the Senate bill removes the provision’s bite, which may render it constitutionally valid:
To briefly recap- the HCR requires everyone (except native americans, low income people, undocumented immigrants, followers of my cult, the grandfathered**, etc) to purchase health insurance. Violators will have to pay a $750 per head penalty on their tax returns starting in 2016. If you want to pull a Keith Olbermann and become a Mandate dodger, predictably, the HCR has this to say about it:
(1) IN GENERAL.—The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of 23 chapter 68.
The IRS will have your ass, etc, etc. All very predictable. UNTIL you read on to section (2):
(2) SPECIAL RULES.—Notwithstanding any other provision of law—
‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.
Woah!!!! The mother of all loopholes! It turns out the mandate is not mandatory because the penalty is purely voluntary! What happens if you failed to pay that penalty? Nothing! No criminal charges will be filed, no penalties will be assessed, and the IRS has no right to file any lien on you. Imagine a judge saying to a convict: “This court hereby sentences you to death. Pssss- don’t worry, son- our electric chairs are not plugged in.”
Of course, just because the teeth were removed in the Senate bill doesn’t mean that they won’t be added back in when it gets reconciled with the House version.
Nevertheless, it is interesting that the Senate would make the penalty seemingly voluntary. I say “seemingly” because the provision’s language leaves open the door to other means of exacting a penalty from non-compliers. While Section 2 negates criminal penalties and prohibits liens or levies from attaching to a taxpayer’s property, just what constitutes someone’s property isn’t spelled out. It may surprise you to learn, for example, that tax dollars are not deemed your property by the federal government, such that once they are paid (or deemed owing) you don’t have any say in how they are spent outside the ballot box. By the same token, if you were to be due a tax refund of some sort, this provision appears to allow the federal government to withhold the $750 penalty. Similarly, it could also declare certain dollar-for-dollar income deductions to be invalid (up to $750) if you refuse to abide by the mandate. My reading of the provision would allow all sorts of federal government gimmicks to be used while still remaining within the letter of the law.
Another interesting aspect of Congress placing this muzzle on the mandate, is that we know it will raise costs. Indeed, the CBO has stated about other bills that an ineffective individual mandate would make the costs skyrocket as the uninsured wait until they are sick before getting any coverage. Without paying into the system from the start, this sick population will basically just receive heavily subsidized health care, paid for by the dopes who paid while they were healthy.
In short, Congress is faced with two poison pills and must choose one: either (i) unconstitutionally force Amercians to purchase insurance, or (ii) create mandates without teeth, and ensure that the bill costs far more than promised. It will be interesting to see which of the two survives.
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