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The New Independent Party Blog

This Blog is maintained by Mike Barron, Executive Director and Founder of the New Independent Party. The views expressed here are not necessarily those of the Party, its Board of Governors or its Members.

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Supreme Court on the Constitutionality of the Health Care Law. What's Next?

The recent Supreme Court decision settles the issue of the constitutionality of the "Affordable Care Act" but leaves this public policy issue front and center for the election.

I agree with the portion of the decision that found the act coercive with respect to the expansion of state provided Medicaid. I would have agreed with Roberts' decision to find the Act constitutional under the federal government's broad taxing powers were it not for the history of the Act and its language.

Tax legislation is constitutionally required to originate in the House. The Act originated in the Senate, for political reasons. In addition, also for political reasons, the administration went to great lengths to avoid characterizing the penalty for not having insurance as a tax in the language of the legislation. If Roberts had wanted to hold that the Act would have been constitutional if it had originated in the House and if the fee had been labeled as a tax in the Act's language, he would certainly have had plenty of cover.

The fact of the matter is that he did not, so the issue going forward is strictly a public policy debate over where we should go from here legislatively.

The Democrats would have us believe that the issue is settled. This is clearly not the case. The Democrats, also for political reasons, set the tax so low that both individuals and firms are likely to pay the tax rather than comply. As a consequence insurers will be left with a high risk pool of clients and will be forced to raise rates. Higher rates will encourage even more people to opt to pay the tax and wait until they are seriously ill to seek insurance coverage (which under the Act cannot be denied to them).

The Act, as it is currently constituted, is therefore fatally flawed and everyone who is in a position to be honest about the question knows it.

Congress could fix this flaw by simply raising the tax on employers and individuals who fail to comply. That, of course hands the power to rewrite the legislation to whoever controls congress. If Obama remains president he could, of course, veto whatever legislation emerges from congress, but if he does so he is left with the currently fatally flawed legislation on his hands.

My own guess is that he would veto an outright repeal of the Act, but that he would accept significant changes to the Act that might be functionally the same as "Repeal and Replace."

In a future blog, I will attempt to lay out the changes that I think would move the Act in the direction of the policy proposals embodied in the New Independent Party's Platform.

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