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Title: Obamacare Architect: ‘The Law Is Working As Designed,’ ‘We Need a Larger Mandate Penalty’
Source: Breitbart
URL Source: http://www.breitbart.com/video/2016 ... need-a-larger-mandate-penalty/
Published: Oct 27, 2016
Author: Ian Hanchett
Post Date: 2016-10-27 17:54:08 by nolu chan
Keywords: None
Views: 622
Comments: 7

Obamacare Architect: ‘The Law Is Working As Designed,’ ‘We Need a Larger Mandate Penalty’

by Ian Hanchett
Breitbart
26 Oct 2016

On Wednesday’s broadcast of “CNN Newsroom,” MIT Economics Professor and Obamacare architect Jonathan Gruber argued that “The law is working as designed. However, it could work better. And I think probably the most important thing experts would agree on is that, we need a larger mandate penalty.

Gruber said, “Obamacare’s not imploding. The main goal of Obamacare was two-fold. One was to cover the uninsured, of which we’ve covered 20 million, the largest expansion in american history. The other was to fix broken insurance markets where insurors could deny people insurance just because they were sick or they had been sick. Those have been fixed, and for the vast majority of Americans, costs in those markets have come down, thanks to the subsidies made available under Obamacare.”

When asked about the 22% Obamacare premium increases, Gruber stated, “the 22% increase, let’s remember who that applies to. That applies to a very small fraction of people, who have to buy insurance without the subsidies that are available. 85% of people buying insurance on the exchanges get subsidies. And for those people, this premium increase doesn’t affect them. Now, for those remaining people, that is a problem, and that’s something that we need to address, but it’s not a crisis. It doesn’t mean the system’s collapsing. And most importantly, it doesn’t affect the 150 million Americans who get employer insurance, who have actually seen their premiums fall dramatically, relative to what was expected before Obamacare.”

[snip]

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#2. To: All (#0)

The "mandate penalty" existed in the original bill as it went to the U.S. Supreme Court. As a penalty, attributed to a supposed power under the Commerce Clause, the mandate was ruled unconstitutional.

There is such a thing as a tax penalty, but that is not a penalty in the form of a tax. That is a penalty, imposed under law, for not paying taxes.

The mandate was upheld as an excise tax, not for those who break a law, but upon the class of people who do not have health insurance. The plenary taxing power permits a tax upon a defined class of people. But it cannot be a penalty or punitive. Then it would fall outside the taxing power and be unconstitutional, as explicitly stated by Chief Justice in NFIB.

Aside from the fact that the mandate is not a penalty, as an excise tax, it cannot be raised to the point where it assumes a punitive function, as explicitly stated by Chief Justice in NFIB. Then it would fall outside the taxing power and could be struck down as an unconstitutional punishment in the guise of a tax.

But the media and administrative references to a mandate penalty have been so repeated without challenge that people forget all about the U.S. Supreme Court decision that struck it down as a penalty.

There is no mandate penalty. There is a mandate tax.

See, e.g., Washington Post, January 18, 2013, George Will: The time bomb within Obamacare?

https://www.washingtonpost.com/opinions/george-will-the-time-bomb-within-obamacare/2013/01/18/673a113c-6108-11e2-9940-6fc488f3fecd_story.html?utm_term=.eee4a5a127ab

[excerpts]

The crucial decision, he says, was four liberal justices joining Roberts’s opinion declaring that the ACA’s penalty for not complying with the mandate to purchase health insurance is actually a tax on not purchasing it.

[...]

What was supposed to be, constitutionally, the dispositive question turned out not to be. Conservatives said that the mandate — the requirement that people engage in commerce by purchasing health insurance — exceeded Congress’s enumerated power to regulate interstate commerce. Liberals ridiculed this argument, noting that since the judicial revolution wrought during the New Deal, courts have given vast deference to Congress regarding that power. The ridicule stopped when five justices, including Roberts, agreed with the conservative argument.

This did not, however, doom the ACA because Roberts invoked what Lambert calls “a longstanding interpretive canon that calls for the court, if possible, to interpret statutes in a way that preserves their constitutionality.” Roberts did this by ruling that what Congress called a “penalty” for not obeying the mandate was really a tax on noncompliance.

[...]

Roberts noted that a person earning $35,000 a year would pay a $60 monthly tax and someone earning $100,000 would pay $200. But the cost of a qualifying insurance policy is projected to be $400 a month. Clearly, it would be sensible to pay $60 or $200 rather than $400, because if one becomes ill, “guaranteed issue” assures coverage and “community rating” means that one’s illness will not result in higher insurance rates.

So, Lambert says, the ACA’s penalties are too low to prod the healthy to purchase insurance, even given ACA’s subsidies for purchasers. The ACA’s authors probably understood this perverse incentive and assumed that once Congress passed the ACA with penalties low enough to be politically palatable, Congress could increase them.

But Roberts’s decision limits Congress’s latitude by holding that the small size of the penalty is part of the reason it is, for constitutional purposes, a tax. It is not a “financial punishment” because it is not so steep that it effectively prohibits the choice of paying it. And, Roberts noted, “by statute, it can never be more.”As Lambert says, the penalty for refusing to purchase insurance counts as a tax only if it remains so small as to be largely ineffective.

[...]

As Will went on to note, the only way to get healthy people to sign up, as desired, would be to increase the amount and giving of subsidies to where people would take the policy because the difference between the cost of refusing and accepting would be negligible.

But if that is done, the whole house of cards collapses under its own weight. And the tax could be ruled punitive and unconstitutional.

nolu chan  posted on  2016-10-27   18:00:17 ET  Reply   Untrace   Trace   Private Reply  


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