The Thinker: Rich Galen


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The Nay-C-A

Rich Galen

Monday December 17, 2018

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  • Last week, a Federal Judge in Texas struck down the law officially known as the Patient Protection and Affordable Care Act - known better as Obamacare - also known as the ACA especially by people who were defending it when it was new and unpopular.

  • In 2012, Chief Justice of the United States John Roberts ruled that the individual mandate was Constitutional because it was a tax on people who chose not to buy health insurance. As an issue brief from Americans for Tax Reform read at the time:
    "The Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product."

  • The Congress has the Constitutional authority to impose taxes so, if the mandate is a tax then bibbity-bobbity-boo, the mandate is Constitutional, and the ACA is legal.

  • Ok. We've learned to live with that ruling if not with that logic, so what happened that caused Judge Reed O'Connor to rule that it was now UNconstitutional?

  • Well, when the Republican Congress adopted the huge tax-cut bill last year, one of the provisions was to remove that tax on the individual mandate. Whether an unintended consequence or legislative sleight-of hand, when the tax went, according to Judge O'Connor, the Constitutionality of the mandate went with it.

  • Ok, then, why not just declare the mandate Unconstitutional and go out for some Tex-Mex for lunch?

  • Judge O'Connor agreed with 20 States Attorneys General that invalidating the mandate invalidated each of the remaining 2,300 pages of the ACA.

  • I'm a little thin on this logic even with my oft-claimed three hours of Con Law at Marietta College, Marietta, Ohio 45750.

  • O'Connor wrote:
    "In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses."

  • For those who have lost their scoresheet, the All-Democratic 2010 Congress adopted the ACA; the All-Republican 2017 Congress repealed the tax on the mandate.

  • Obamacare appears to be one of those laws that everyone hated until it went into effect and then a lot of people got over it. A major piece of the ACA is the expansion of Medicaid which provides health coverage, according to the web page, to 66.4 million people "including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities."

  • My feeling is that once people realized that the Feds and the States were helping to pay for their mother-in-law's health care, they didn't think Obamacare was a four-letter word anymore.

  • There are a lot of other issues in the massive bill, including the way health insurance companies can treat pre-existing conditions; lifetime costs associated with the same medical issue, and a bunch of other things.

  • A Wall Street Journal/NBC poll released over the weekend asked (among a bunch of other things): "Now that Democrats control the House of Representatives, which one or two of the following would you most want them to change from President Trump's policies?"

  • Tied for first at 18 percent each were health care and immigration.

  • Our hands are being patted and we are being there-there'd by experts who tell us that, in spite of Judge O'Connor's ruling, nothing is going to change for right now. The ruling will be appealed and until the Supreme Court takes another look at the ACA, it is too jarring to too many people to be wondering whether that 24-year-old kid living in the basement is still covered by their heath insurance.

  • This weekend, fresh from his finger pointing session with Donald Trump last week, Senate Democratic Leader Chuck Schumer stated:
    "The first thing we're going to do when we get back there in the Senate is put a vote on the floor, urging an intervention in the case."

  • Schumer must be confused about who will control the Senate when the 116th Congress opens on January 3, 2019. The Republicans, is the answer to that, and Majority Leader Mitch McConnell not Chuck Schumer will decide what comes to the floor and what doesn't.

  • In the House, however, Speaker-presumptive Nancy Pelosi will likely control the Floor, so look for the O'Connor ruling to be an early issue on that side of the Capitol.

  • On the Secret Decoder Ring today: Links to the NY Times' reporting on the O'Connor ruling, to the NBC/WSJ poll, and to the Politico reporting on Schumer's empty promise.

    The Mullfoto is of the front door of my refrigerator - with a CVS cash register receipt that runs the entire length.

    -- END --

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