HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, June 28, 2012

ACA Ruling: Koan of Coercion, Constitutional as a Tax, and More

A few points on the ACA ruling: 

1) Congrats to Jack Balkin for authoring "The Health-Care Mandate Is Clearly a Tax—-and Therefore Constitutional," back in May. From his lips to Justice Roberts's ears.

2) I would also like to congratulate "individuals exposed to asbestos from a mine in Libby, Montana," for keeping the Medicare coverage PPACA granted them. The joint dissent would have stripped that away, along with other parts of the Act they deem "minor provisions," in a blanket repeal of PPACA they would characterize as "caution" and "minimalism." I'm sure the tens of millions of Americans who will now enjoy insurance define "caution" quite differently. 

3) Another tip of the hat to Tim Jost, who has carefully and comprehensively blogged about key steps toward PPACA implementation, even with the "constitution in exile's" Sword of Damocles hanging over it. If you want to learn more about the "Premium Tax Credit Final Rule," essential health benefits, or minimum loss ratios, he's the go-to person.

4) A good rundown of “what the decision means for you” is here.

5) A koan on coercion, compliments of the Chief Justice:

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose atax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

n. 11: Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment, see 26 U. S. C. §5000A(g)(2)). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the taxis predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

6) Sara Rosenbaum of GW predicts “overwhelming number of states” to adopt the Medicaid expansion.

Image Credit: Affordable Care Cat, explained here.



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