Congressional Research Service Report:Obamacare May be Unconstitutional

Every member of congress and every senator should have this Pogo cartoon framed and hung in their office, cause Pogo is correct the biggest enemy of congress, is congress.

Congressman Tom Price (R-GA) asked the non-partisan research service to look into how Obamacare obligated federal, state and local governments with regards to covering their employees, and the news was not good.

The Memo confirms the report from a few weeks ago which indicates that, with the signing of the bill,  the only health care plans the government may make available to members of congress and their staffs are the ones offered through the exchanges.

With respect to health insurance for Members of Congress and congressional staff, § 1312(d)(3)(D) of

PPACA specifically requires that: 

the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are--

(I) created under this Act (or an amendment made by this Act); or

(II) offered through an Exchange established under this Act (or an amendment made by this

As a general rule, when interpreting the meaning of legislative language, courts will often use methods of statutory construction commonly referred to as “canons,” or general principles for drawing inferences about language. Perhaps the most common “canon of construction” is the plain meaning rule, which assumes that the legislative body meant what it said when it adopted the language in the statute. Phrased another way, if the meaning of the statutory language is “plain,” the court will simply apply that meaning and end its inquiry.

In other words since this part of the law is written in fairly plain English, it is what it is. Since the exchanges will not be established until 2004 they are "out of luck," for the next four years, unless the bill is amended.

The memo speaks to the employer mandate part of the law, the bill says that it is not enough for an employee to pay part or even most of the heath care costs. The employee share of the health care payment must not put the employee under "financial duress."

" Under § 1513 of PPACA, as amended, if an “applicable large employer” fails to offer “minimum essential” health coverage to its full-time employees (and their dependents) under an eligible employer sponsored plan, and at least one of these employees enrolls in a qualified health plan under which a premium tax credit or cost-sharing reduction is allowed or paid for the employee, the employer can be subject to an assessable payment. Similarly, applicable large employers that offer minimum essential coverage but still have at least one employee who enrolls in a qualified health plan under which the premium tax credit or cost-sharing reduction is allowed or paid for the employee can also be subject to an assessable payment. The calculation for the assessable payments differs for employers that provide overage, and employers that do not.Thus, assuming that an individual subject to § 1312(d)(3)(D) would be eligible for a premium credit or cost-sharing reduction, the question arises whether the federal government could be an employer for purposes of the shared responsibility requirements.

The answer there is probably. And if the Federal government is an employer for shared responsibility requirements, it might be subject to fines should enough people have to file for help because of the high cost of the government/exchange plan. Here's where the plan gets dicey because the state/local governments would also be subject to the fines.

The memo points to two tenth amendment concerns, of which I will discuss one here. As you may know, The Tenth Amendment says: “Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” One of the interpretations of the Tenth Amendment has led to the intergovernmental tax immunity doctrine, basically, state governments cannot levy a tax on the federal government, and the federal government is limited in what taxes it can levy on states.

However, the Court’s recent references to the New York case might suggest that some nondiscriminatory federal taxes which are collected directly from the states may still raise concerns about state immunity from federal taxation. The Court has not clearly enunciated a standard to answer this question. A court might potentially follow the lead of the four Justices in New York and find that taxation of states was allowed because to find otherwise would deny the federal government a “traditional” subject of federal taxation. In this case, determining whether the employer mandate penalty applies to a “traditional” subject of taxation would depend on how a court views Congress’ power to regulate compensation in the employment context. However, it is not clear how this would be applied, as the Court provided no standards for making that determination other than noting without analysis that taxation of income derived from natural resources fell within that power, nor is it clear that a court would use this analysis.

Alternatively, a court might rely on the portion of the four-justice opinion in New York which stated that a nondiscriminatory federal tax may still be unconstitutional if it interfered with “the State’s performance of its sovereign functions.” But, again, that opinion did not set forth a clear standard under which any such interference could be evaluated. Nevertheless, based on lower courts’ use of this test, it is possible that a court would look at the extent to which the employer mandate imposes a burden upon a state’s finances. This analysis is necessarily a fact-specific inquiry, and without the ability to identify which states would be impacted, nor what the extent of that impact would be, any conclusions as to the unconstitutionality of employer mandate under this standard would be premature.

Like any constitutional issue, we cannot be sure where the supreme court will weigh in on this issue. What we can be sure of is the member of congress who voted on this bill did not understand what they were voting on. Below is the entire CRS memo, please take a read and let me know what I missed.

Crs on Health Care Fines