By now, we all know that the Supreme Court upheld the insurance mandate of the Affordable Care Act (ACA) also known as Obamacare. To recap, 26 states brought action to have the mandate, declared as an unconstitutional expansion of federal power under the commerce clause, the necessary and proper clause, and as a minor point its taxing authority. The Supreme Court agreed with the states and found the mandate unconstitutional under the commerce clause, and the necessary and proper clause. However, in what many felt was a stunning decision by Justice Roberts—and judicial over reach, the court upheld the mandate as a proper execution of congresses’ right to tax, to the extent that the penalty is a proper tax.
While at the time of the ruling, one-half of the nation, and the Obama administration, believed the last word had been uttered and Obamacare as passed was now the law of the land; this was not, in fact the case. The law is already being altered by both legislative action and the affected departments like, IRS, HHS, DOL, and others newly created ACA rules.
The law has seen a number of its provisions repealed. Those like the employer reporting requirements and the CLASS act were repealed in the recent fiscal cliff legislation. Some segments of the law have been delayed or defunded by other recent legislature including the CO-OP stimulus provision and the pending 27% Medicare Doctor Reimbursement rate reduction. Additionally, there are numerous other challenges afoot to alter the law or to impact its implementation.
Currently, many states are refusing the required expansion of Medicaid. A similar number of states have made the decision to not, or are indicating they will likely not, establish a state based exchange. About 17 states already have, or currently are enacting laws that prohibit implementation of parts of Obamacare within their state. Some states are in the process of passing so called sovereignty legislation that will make the entire federal law illegal. Fight over the Affordable Care Act is far from over.
One of the more interesting arguments comes from a research paper from Jonathan H. Adler and Michael Cannon, of Case Western Reserve University Law School entitled, TAXATION WITHOUT REPRESENTATION: THE ILLEGAL IRS RULE TO EXPAND TAX CREDITS UNDER THE PPACA. The basic premise of the paper is that in states that choose not to establish exchanges, the IRS does not have the authority to pay subsidies to people who qualify because it has no authority to do so under the law and only congress has the right to do so under the constitution. The paper, makes a convincing argument why this is true and also reports the contrary arguments to this finding. I would encourage you to read this paper for yourself. At this point, the argument is no longer theoretical as at least one state, Oklahoma, based on the arguments in this paper, has filed a suit against the IRS ruling stating their intention to make such payments.
The members of the original 26 attorneys general who brought the prior litigation over the commerce clause are continuing their aggressive pursuits to block this legislation. Since the Supreme Court ruling, the CBO and others have continued to re-evaluate the cost of this legislation as parts are repealed and the rules for specific sections get written. The net effect is that the original, at the time of passage, estimate of the costs of under $1 trillion have escalated to over three times that initial amount. This estimate is specific to the cost of implementation of the law and does not include other costs to the American people and business like premium costs, which have already increased by 1/3 since passage, and are very likely to increase 50% more prior to full implementation. Nor does it include the staggering loss of care to Medicaid and Medicare patients as more and more health care providers are making the decision to no longer accept the current reimbursements for these patients.
This divisive law, passed in the dead of night, and rushed through congress using a method that has never been used before to obscure its provisions from visibility before it was passed, continues to be disliked by almost everyone who worked on healthcare reform in the first place, and disliked by a majority of the population.
The final act of this tragic play may be that when all the arguing is done and all the money spent to both fight and implement this law, Americans will find that they still have an ineffective, inordinately expensive and undesirable health care system.
I am sure there will be much more to report in the coming months as this legislation will remain front and center in the partisan divide we are all living.
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