Friday, April 02, 2010

How the Feds cut the coming lawsuit regarding the individual mandate off at the knees.

At least 12 state Attorneys General have filed a federal lawsuit that would contest the right of the Federal Government to mandate that the individual states pay a higher amount in medicaid payments. If successful, this would not however gut Obamacare. The individual mandate, backed by taxes for noncompliance to be collected by the IRS would still stand. An additional lawsuit would be required to strike it down. Since those mandates won't kick in until 2012, that lawsuit, while certain to be filed, is essentially on hold until someone is actually harmed by having to pay the tax. The Democrats know this and believe they have cut that lawsuit off at the knees. They inserted specific language into the bill that enjoins the IRS from enforcing the payment of those taxes by any means. I'm certain they'll be happy to take any taxes willingly offered, but they can't come after you if you don't pay that tax. The specific section of the reads:
Individuals who fail to maintain minimum essential coverage in 2016 are subject to a penalty equal to the greater of: (1) 2.5 percent of household income in excess of the taxpayer’s household income for the taxable year over the threshold amount of income required for income tax return filing for that taxpayer under section 6012(a)(1);67 or (2) $695 per uninsured adult in the household. The fee for an uninsured individual under age 18 is one-half of the adult fee for an adult. The total household penalty may not exceed 300 percent of the per adult penalty ($2,085). The total annual household payment may not exceed the national average annual premium for bronze level health plan offered through the Exchange that year for the household size…

The penalty applies to any period the individual does not maintain minimum essential coverage and is determined monthly. The penalty is assessed through the Code and accounted for as an additional amount of Federal tax owed. However, it is not subject to the enforcement provisions of subtitle F of the Code. The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner.

So since nobody is actually to be punished for failing to pay the tax, it will be difficult to claim that anyone has actually been "harmed" by this requirement since it is completely voluntary. Since nobody can claim to have been harmed by this "nonmandate", then there can be no lawsuit.

It's a feature, not a bug.


Anonymous Anonymous said...

I think the 1st line of defense is to challenge the constitutionality of the law. I think the timing of Justice Stevens retirement may play into this. The Republicans can filibuster any confirmation vote and the court would be 4 conservative/3 liberal/1 swing vote - much better odds than 4/4/1

Of course it needs to be argued before they recess, and Stevens might decide not to retire until this is settled.

The issue of liberal use of the commerce clause and/or state rights has to be resolved; otherwise we are going to see some serious stuff happen.


April 06, 2010 9:42 AM  

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