Friday, August 9, 2013

Jost deserts

Or hoist by their own petard, are supporters of the Patient Protection and Affordable Care Act (aka, Obamacare). As Michael F. Cannon points out in Health Highlights, in order to save its passage, they had to destroy it. The chief culprit being a law professor named Timothy Jost, who thought he had a bright idea to get around the political problem that Democrats had had to bow to--they had to avoid the appearance of a federal takeover of healthcare by making it nominally a state function to run the 'exchanges' that were to subsidize mandated health insurance--in order to get enough votes to survive the Republicans ability to filibuster;
In early 2009, Jost proposed that Congress get around this problem “by offering tax subsidies for insurance only in states that complied with federal requirements.”
They didn't count on the law being so unpopular that 2/3 of the states would refuse to set up an 'exchange'. Meaning that, legally, the subsidies can't be provided--ultimately to the insurers who are to pay for health care under the PPACA. So, the IRS simply rewrote the law! As Cannon puts it;
The IRS’s attempt to spend some $800 billion without statutory authority turns out not to be a victimless crime. Due to interactions with other provisions of the PPACA, the IRS’s illegal tax credits will trigger illegal taxes against millions of employers under the employer mandate, as well as millions of individuals under the individual mandate.
Those victims are fighting back. In Pruitt v. Sebelius, Oklahoma attorney general Scott Pruitt filed the first legal challenge to the IRS’s illegal tax credits in federal court.... First, Oklahoma claims the issuance of illegal tax credits will trigger illegal taxes against the state under the employer mandate. Second, Oklahoma claims that Congress gave states the exclusive power to decide whether to embrace the taxes and subsidies that come with establishing an Exchange, yet the IRS is usurping that power and therefore infringing Oklahoma’s sovereignty.... In a separate lawsuit, Halbig v. Sebelius, several private employers and individual citizens have asked the U.S. District Court for the District of Columbia for relief from the IRS’s illegal taxes and other injuries.... Legislators in Ohio and Missouri have introduced legislation that would effectively block both the IRS’ illegal tax credits and illegal taxes on employers in those states.
Cannon notes the irony;
The lawsuits do not seek to undermine the PPACA. They seek to force the Obama administration to obey the statute, and to prevent the administration from taxing, borrowing, and spending $800 billion in clear violation of the law. If implementing the PPACA as Congress intended would lead to catastrophic results, the fault lies with the PPACA itself.
Then Cannon sums up;
Our tale, though scripted and set in America’s ongoing health care debate, is not actually about health care at all. It is about whether government officials are subject to democratic constraints. In this still-unfolding narrative, the Obama administration’s actions are triply anti-democratic. First, the IRS is violating a direct constraint that popularly elected legislators placed on the executive branch. Second, it is violating that duly enacted statute for the purpose of denying popularly elected state officials the vetoes Congress gave them over certain provisions of the statute. And third, it is violating the statute because administration officials either cannot fathom or will not accept that Congress meant to do what it clearly did.
Michael Cannon, you're no Jay Leno. Thankfully.

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