Affordable Care Act’s taxing nature poorly hidden

Pepper Crutcher, a labor and employment law attorney in Balch & Bingham’s Jackson office, finished reading Chief Justice John G. Roberts’ opinion on the Affordable Care Act by mid-morning of its June 28 issuance.

One clear conclusion, according to Crutcher, is that Roberts knows a tax when he sees one. Call Obamacare’s health-care mandate whatever you like, the monetary penalty used to compel citizens to follow the mandate is an honest-to-God tax, Roberts ruled.

Thus, the safety the court granted the Affordable Care Act rests with the court majority holding that the mandate is more of a tax than a penalty. The White House and Congress, if you recall, did all sorts of contortions back in 2010 to characterize the penalty as anything but a tax.

Roberts, Crutcher said, thought himself bound to ignore the act’s own description as a penalty and analyze it as congressional taxing power

What you have to do, the chief justice said, is ignore what Congress said as it passed the legislation.

As Crutcher explained: “He is saying the labels Congress gives something don’t determine the constitutionality of the action.”

A tax is a tax, in other words.

Now, ironically, that it can be viewed as a tax ensures its survival.

A remaining weakness of the health care measure is that beyond saying a citizen must buy the insurance or pay a penalty, the law does not say what it would do to citizens who decline to buy the insurance and refuse to pay the penalty.

Should Congress decide the law needs more teeth to force citizens to comply with the mandate, the measure could edge away from being seen as a tax, Crutcher said. “If Congress in the future were to make this look more like a penalty and less like a tax that might raise a whole new set of lawsuits,” the employment attorney said.

The lone setback inflicted on Obamacare came with a part of the ruling that removed sanctions that were to be used against states that do not comply with a broad expansion of Medicaid. Under the ruling, the federal government cannot withdraw existing Medicaid funding from states that decide not to participate in the expansion of Medicaid eligibility.

But the feds can dangle increased incentives — and those incentives could have a lot of appeal for states such as Mississippi with vast unmet health care needs.

Hence, Mississippi’s elected officials now have a hot-button issue on their hand: complying with the Medicaid expansion and increasing the number of citizens receiving care or risking depleting state coffers when it comes time for the state to pay for the expanded care on its own dime.

While healthcare reform provides state’s initial funding to expand Medicaid to citizens with incomes within 130 percent of the federal poverty level, that funding’s duration is limited, Crutcher of Balch & Bingham cautions.

Crutcher, a Republican, said Mississippi’s GOP-controlled Legislature could well decide to refuse the initial Medicaid expansion incentives. “I wouldn’t be surprised to see our Legislature say this is guaranteed to bring bankruptcy if we take this deal,” he said.

And don’t look for Mississippi to take the deal, at least not if the decision is left to Lt. Gov. Tate Reeves, who engineers many of the moves made by the Legislature, especially in its key committees.

Reeves wasted no time Thursday morning declaring where he stands. Repeal, repeal, repeal, and then repeal some more, Reeves says.

“Defeating Barack Obama in November is even more important to limit the intrusion of the federal government into our daily lives and fight for the full repeal of Obamacare,” he said in a press statement.

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