The SCOTUS passed its ruling on the ACA and a large number of people are confused about parts of it, what is really in it substantively one way or another?
Is the ACA mandate really Constitutional? Well, 5 out of 4 justices said that it is, of-course it would be a bad outcome if such a close call was made upon a case deciding whether it is Constitutional for the government to execute people without a trial on a hunch of a president, but that can never happen, or ?
There are many interesting questions raised about ACA, but one is particularly intriguing, how is the mandate to buy insurance from a private company or face a penalty (tax under the SCOTUS ruling) Constitutional?
Also how is ACA Constitutional at all, given that this is a Senate bill and it did not originate in Congress as all bills are supposed to? Well, let's just leave that for later.
So let's examine the interesting points of the ruling:
1. The majority opinion is that the mandate is only Constitutional as a tax. The reason for this is that as a fine, this is unconstitutional, because it is an admission of an attempt to legislate by punitive taxation. The other reason is that the opinion also states that the government cannot use the commerce clause to force people to buy something that they are not buying otherwise. Now, there is a legal precedent for an opposite ruling actually, AFAIC regardless of what SCOTUS said in Wickard v. Filburn, that ruling was wrong and allowing the government to force a farmer to buy wheat when he is not interested in buying it is unconstitutional. But then again, so many people are excited about the ruling of 4 to 5 justices this way, though it clearly could have gone the opposite direction. The question of-course is: should there be so much room given to the SCOTUS justices to maneuver that they could rule one way or another basically on a whim and also because of public pressure? Does this really defend the Constitution or does it actually do something completely opposite?
2. The majority opinion is that this tax is only Constitutional because it is a small tax and ACA does not give authority to the IRS to enforce it by force (garnishing wages or imprisonment). The reason for this is that if the tax was punitive, then the SCOTUS would have to declare it unconstitutional, because it would mean that the government is trying to legislate by taxation what it cannot legislate directly, and this cannot be done. There are plenty of precedents as to why this is illegal, a simple example is prohibition that required an amendment to be passed to the Constitution. Passing an amendment is much more difficult than raising a tax, but still to stop people from consuming alcohol the government could not simply pass a 1,000,000 dollar tax upon sale of a bottle of booze, because this would clearly be a way to prevent people from drinking, which is a legislative move, but to do it with taxes. Taxing is not supposed to be replacement for legislation, and that is why it is very important to understand, that Roberts wrote that the mandate stands as is because the tax (fine) is very low and doesn't actually force anybody to buy insurance.
This means that in principle if the tax (fine) is raised from its current level (and it will have to be raised, otherwise ACA is completely unworkable, everybody who has to pay for insurance under the ACA will cancel insurance and only 'buy' it when they absolutely need to and then cancel again, once done with the bills) so if the tax is raised, the mandate becomes immediately unconstitutional and ACA has to go back to the supreme court!
Of-course in practice it's not going to happen, the lower courts will misinterpret what this is and will rule that raising the tax is constitutional and the SCOTUS will deny hearing it again, so in practice this doesn't matter anymore, they found a loophole to pass ACA and now they won't bother with what they have to do technically to keep it legal, just like how they implemented the income tax (which is still illegal today, it is only legal as a tax on corporate profits, not an 'income' tax and not a personal tax).
3. Majority opinion stated that the mandate tax (fine) is not a direct tax based on a completely faulty notion that it only applies to a small number of people who are currently uninsured and will not buy insurance in the future. This is wrong on many points. First, direct tax means a tax that is forced upon a person directly and that person pays directly to the government. The direct tax must be apportioned to be legal though, that's why Roberts said that this tax is not direct, which makes it something else - excise tax or a duty or import. It's not a duty or import, so it's an excise. But how can this tax be an excise, like a sales tax, if the person who is forced to pay it, is only forced because he is not participating in commerce, he is not buying something (insurance)?
There is a contradiction in the ruling that is glaring, it is amazing people are not seeing it: the SCOTUS found that the commerce clause doesn't apply to make mandate legal, but simultaneously the majority opinion stated that the mandate tax (fine) is not a direct tax, while stating that the commerce clause doesn't apply. Either the commerce clause applies, and thus the excise tax can apply or the commerce clause does not apply, but that means that no excise tax can be levied.
Either it's commerce or it is not commerce, and if it is not commerce, then commerce tax cannot apply, and excise is a commerce tax - tax on the act of buying (well, in this case not buying) something.
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It is likely that there will be a situation at some point, when a person will not buy insurance and will be fined under the ACA and will take this to court. Assuming that the lower court would understand what is written in the SCOTUS decision, and assuming that the lower court would care, would want to go after the truth of the matter, this can in principle end up back before SCOTUS (if SCOTUS decides to hear it again, which is probably unlikely).
But if this happens, then the defence must bring forward this argument as well:
The mandate tax (fine) is unconstitutional because it is not a direct apportioned tax, it is not a uniform excise tax and it is not an income tax (an income tax, which is by the way only Constitutional as an unapportioned excise tax on corporate profits, you can read further for the explanation of that.)
These are taxes that can be levied by the US federal government legally:
1. Direct apportioned taxes, capitation and other direct apportioned taxes tax (a tax that applies to a person directly but is apportioned to the States). This means that if the federal government wants to raise taxes, it has to say by how much and it has to then use census data and depending on the populations of different States, apportion them their share. So if California has 12% of population, it would be responsible for 12% of this tax increase. Direct apportioned taxes were introduced by the founders this way in order to try and prevent 2 things:
a. Fraud in census data, that's because a State could overstate its population to send more Congressmen, Senators to the Washington.
b. US founders did not like direct taxes, they added that direct taxes had to be apportioned specifically so that poorer States would not always vote for tax increases. If the direct tax is not apportioned, then poorer States would always vote to increse taxes upon richer States, creating wealth redistribution and incentives to increase taxes on the rich (exactly the rhetoric by the government nowadays, that is so much supported by the poorer people). Apportioning direct taxes prevents this problem, because then direct taxes would have to be paid by poorer and wealthier states only depending on the size of their population.
2. Uniform excise taxes. These are indirect, so they can be collected from a person not directly, but through a merchant for example, such as sales taxes. Uniformity requirement means that there should not be special dealings when introducing them, people shouldn't be forced to pay different sales tax depending on their location or religion or race or whatever.
3. The 16th amendment allows for an income tax. This is a special situation, probably 99.9999% of people misunderstand what this is.
Initially the tax was introduced as an indirect tax, but SCOTUS saw through that argument and did not buy it. That's because the government made this argument: this is not a direct tax on people, it is a tax on people's income! In case of rental income, putting a tax on it is equivalent to putting a tax on property, so taxing rent is taxing its source - land and then it's a direct tax on the land owner.
In 1913 the new legislation appeared that stated that any income from any source can be taxed without apportionment. The 1916 Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916) court case stated that income can be taxed without apportionment. BUT this case does NOT state that income can be taxed directly, so from that case, the income tax is an unapportioned indirect excise tax.
In Brushaber the SCOTUS stated that in order to tax income, the income must be separated from its source, because it cannot be a direct tax, because it is unapportioned. So a rent income is not under this decision, because rent is tied to land and to the owner of the land.
Later SCOTUS decisions explained that separating income from source can be done with a corporate balance sheet, which means that the 16th amendment income tax is in reality a corporate profit tax. There is no legal, Constitutional personal income tax, people do not have profit, only corporations do. Profits are all expenses subtracted from all incomes, that's what can be taxed.
This actually is interesting from another perspective, so many people are upset about so called 'loopholes' that corporations have in order to lower their income taxes, but of-course all these so called 'loopholes' have to do with the fact that corporation has so many expenses, and government tries to reclassify various expenses in a way that would prevent them from being subtracted from incomes for the purposes of tax accounting. There is the entire notion of 'capital depreciation' (and the entire false 'scandal' about the 'corporate jets', which depreciate in 5 years instead of 7 years for commercial airliners). But this is total nonsense, as corporation has to buy the equipment and pay for it right away, but it is prevented from subtracting its expense from its income the year it bought the equipment, which often turns the situation into an impossible one, where a company with no profits is forced to take loans to pay income taxes!
So again, the income tax is not an income tax, it is only Constitutional as an excise tax on corporate profits. But this means that the current practice that IRS is involved in - collecting DIRECT UNAPPORTIONED taxes upon PEOPLE'S INCOME is completely unconstitutional, it is precisely the opposite in every way of what was declared as Constitutional by the Supreme Court of USA.
Given this history of behaviour of US government, it is very obvious that since ACA passed with a very narrow definition of how it is Constitutional, in the future of-course it will be enforced in a completely unconstitutional manner.
The tax (fine) will be raised, because people who do pay for their insurance today will stop paying, because this tax (fine) is so low today compared to the insurance plan payments. There will be some people who will be subsidised under the plan and will not have to pay for insurance, so they will 'buy' their plans with the subsidies. Also the people who actually need insurance to pay them right now, because they are sick, they will obviously 'buy' into insurance, since they cannot be denied due to the pre-existing conditions.
But this means that huge number of people will drop out of insurance, and the only people in it will be a minority of those who didn't have it until now and those who need insurance to pay for their treatment.
Under this scenario, the insurance companies will cease to operate. But of-course what is likely to happen is that the government will bail out the insurance companies with tax (and borrowed and printed) money. In the short term the government may even have an influx of cash because taxes (fines) will be collected from people who had private insurance prior to ACA but would cancel it now and just pay the tax (fine). But in the long run this means that insurance will become extremely expensive because of lack of payers and the government will be bailing out insurance with tax money at the new expensive rates.
So in conclusion, as always is the case, the name of the bill that came out of the government should be fully reversed by 180 degrees in order to understand the real consequences of this legislation.
This is not an 'Affordable Care Act', this is the exact opposite: the Unaffordable Care Act, because if people thought their premiums were going up quickly before ACA, they will be surprised just how good they used to have it.
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PS:
note that Robert's decision that the mandate tax (fine) is indirect based on the idea that only a small part of the population will pay it faulty in another manner.
For a direct tax to be direct it is unnecessary that 100% of population pays it! People can be exempt from taxes and this means that no tax is paid by 100% of population (this never happens anyway), and thus the logic that the mandate is not a direct tax is faulty, but it can be understood why Roberts declared that, because if he had to admit that the tax is direct, it would immediately be unconstitutional, because it is unapportioned!
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PPS:
It should be noticed that ACA has various implications to the economy that are not fully appreciated by the businesses yet.
There will be a strong pressure upon the businesses to downsize the workforce, to make sure they do not have over 50 employees. Of-course companies will be dropping insurance coverage, so this is good news if taken out of the context of ACA, because it will provide some boost to people's incomes, as they will have a little more money in their pocket temporarily, that's because as employers will drop coverage, they will have to increase the salaries of their employees by some amount (also this depends if there are any penalties associated with not covering employees under the new ACA plan, because before ACA there were penalties to the employer).
But eventually as companies downsize there will be more unemployment and at the same time the insurance companies will be under pressure because they will lose so many current clients as people and companies cancel their insurance plans plans (it's a 'free ride' with no pre-existing conditions).
Eventually this will lead to a serious problem just because of ACA alone. The large firms that cannot downsize under 50 people quickly will be hit with extremely high insurance premiums all of a sudden, that so many people will cancel insurance and the rates will have to skyrocket.
The large companies will be in a pickle, this WILL mean more outsourcing and more firing and no hiring by large companies at all (and by companies that are at the 50 people threshold).
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