November 4, 2013

Another broken Obamacare promise

By Anastasia P. Boden Attorney

In the latest episode of the Obamacare saga, hundreds of thousands of insured individuals have begun receiving cancellation letters—which inform recipients that they will not be able to keep their health insurance policy.  These letters fly in the face of the promises President Obama made just a few years ago, when he famously insisted that “if you like your health care plan, you can keep [it].”

As media outlets have reported, the administration knew all along that millions would not be able to keep their plan.  Indeed, forcing individuals to commit to more expensive, higher coverage plans was integral to the law’s purpose.  The law’s requirement that insurance companies accept applicants despite any pre-existing conditions, as well as the law’s limit on insurers’ ability to charge individuals more or less depending on one’s risk, would not work without the individual mandate.  If an insurance pool only contained people who were already sick, or high risk, costs would go through the roof.  To mitigate this problem, the mandate requires the young and healthy not only to maintain health insurance, but to pay for far more coverage than they need, in order to subsidize others.

As Charles Krauthammer points out in a Washington Post article, politicians can’t talk about subsidization openly, “lest [they] lose elections. So [they] do it by subterfuge: hidden taxes, penalties, mandates and coverage requirements that yield a surplus of overpayments.”  Yet they outwardly maintain that you can keep your policy, even when they know you cannot.

Though this development should be surprising, Obamacare has been one big exercise in political unaccountability, from the President’s denial that the individual mandate was a tax, to the Act’s creation of the unelected, unaccountable Independent Payment Advisory Board, to the IRS rule which illegally extends tax credits under the Act, to Congress’ request for special treatment under the Act, to the President’s postponement of the employer mandate until after the midterm elections.  Pacific Legal Foundation is challenging the constitutionality of the Act’s individual mandate based on yet another aspect of the law which reduces political accountability.

When Obamacare reached the Supreme Court last year, Justice Roberts adopted a “saving construction” and upheld the mandate as a tax in order to avoid striking it down under the Commerce Clause.  In our lawsuit on behalf of veteran Matt Sissel, we argue that the “tax” is unconstitutional under the Origination Clause—which requires all taxes to be introduced in the House of Representatives.  In enacting the Affordable Care Act, the Senate took a House bill and gutted it of all content, then penciled in the health care law.  Accordingly, the Act can hardly be said to have “originated” in the House.  This constitutional violation is not a mere technicality; the Origination Clause acts an important safeguard of political accountability because it ensures that all taxes originate in the chamber of Congress closest to the people.

To join the fight to hold government to the demands of the Constitution, and to bring political accountability back to the political process, enlist with Matt Sissel.

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