The Trump Tax Cuts and the Obamacare Mandate 'Repeal'

The new tax bill is now law; it's on the books; it's an addition to the U.S. Code.  But unfortunately, the new law doesn't have a very catchy title.  Its original title was the "Tax Cuts and Jobs Act of 2017," which is most excellent.  However, due to punctilios in the Senate, the name had to be changed, and in the rush to get the thing passed, congressmen settled on "An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018."  That's not so catchy.  I don't know if it can be retitled, but because titles matter, I'd wager that the new law will simply be called the "Trump Tax Cuts."

Conservatives should be relieved that Republicans in Congress finally passed a big piece of legislation.  We were beginning to think they were incapable of coming together.

One of the pleasant surprises in the new law is the so-called "repeal" of Obamacare's individual mandate.  But inasmuch as Obamacare is still "on the books," just how did Republicans accomplish this repeal?

Okay, let's look at the law.  One place to find the text of the Trump Tax Cuts is at  The copy there has hyperlinks, and in the section on the mandate, there is a single link, on "Section 5000A(c)."  But it doesn't seem to have page numbers to navigate with, unlike the copy at the Government Publishing Office.  On page 101 of the PDF at the GPO, we come to PART VIII, which deals with the mandate, and it spans two pages.  Because I'm a nice guy, I've spliced together two screen grabs from the GPO copy for your convenience:

You can scour the rest of the text, but I don't think you'll find any other mentions of the individual mandate.  Notice at the bottom that the effective date is after this year, so folks still need to have health insurance in 2018 or pay the penalty.

The method by which the mandate was repealed is interesting: they merely zeroed out the penalty for noncompliance.  In the ACA, it's called a penalty, but the Supreme Court ruled it a tax.  So the "tax" now has a rate of "zero percent" and a bottom levy of "$0."  But because Obamacare is still on the books, some future Congress under Democrat control could easily raise the tax or penalty back to where it was, or even higher -- and use reconciliation to do so!

Those who think Obamacare is bad law, bad economics, and grossly un-American won't rest easy until the whole misbegotten mess is repealed (dashed to Hell, whence it came).  The snag in repealing the entire law is the soft hearts of some Republican senators who "don't want to hurt anybody."  That's a fine and decent concern.  But there's a simple solution to continuing with help for seriously ill Americans with "pre-existing conditions" currently getting Obamacare subsidies to buy private insurance: put them all in Medicaid.

The presence of these ill people in the tiny Non-Group market (the individual market) has caused premiums to soar, even reaching triple-digit increases.  It's unfair for the smallest cohort to have all the sick, poor folks dumped into their pool.  By putting them into Medicaid, the costs can be shared by all Americans.

The individual mandate has been called the "linchpin" of Obamacare, but it really affects only the Non-Group market.  The Non-Group market could die (and it very well may), and the rest of Obamacare would continue.  We'd still have all the other taxes; the subsidy program; the expansion of Medicaid; the myriad demands on insurance companies to cover everything for everybody, regardless of what policyholders need.  Therefore, when some say the "repeal" of the mandate is really a repeal of Obamacare, they're mistaken.

Perhaps the reason we haven't heard a lot of caterwauling from the Dems about the "repeal" of the mandate is because the Non-Group market never was the primary focus of Obamacare.  Rather, the true aim of the ACA was to put a government imprimatur on an entire sector of the economy.  It was a fascistic power-grab.  The Non-Group market, only 4 percent in 2013, was just window dressing.  The real aim was all the new requirements on what health insurance policies must cover, the expansion of Medicaid, bringing "the several States" to heel, etc.

The entire "repeal" of the individual mandate takes up 77 words.  Because of that brevity, Republicans missed an opportunity, for they could have inserted some justification in it, perhaps even a little philosophy.  Compare PART VIII of the Trump Tax Cuts with Section 1501 in Obamacare on page 242 of the PDF (also see pages 907-910 for amendments to 1501).  This is where we find the Democrats' justification for their "requirement to maintain minimum essential coverage," aka the "individual mandate."

Throughout Section 1501, we're treated to the Democrats' reasoning for requiring Americans to buy health insurance.  It rests on the authority of Congress to regulate interstate commerce under the Constitution's Commerce Clause.  The thing is, their justification was overridden by the Supreme Court in NFIB v. Sebelius.  So it would have been terrific if the "repeal" had included some justification and had echoed the dicta in NFIB that the Commerce Clause does not give Congress the authority to command Americans to buy stuff.

Republicans need to recognize that come 2019, their "repeal" of the mandate is going to seriously affect the Non-Group market.  If healthy young folks exit the Non-Group risk pool due to their new freedom, insurance premiums for those who remain in the pool should soar even higher.  Does the GOP want to get blamed for the further destruction of the Non-Group market?

Also, because Democrats can so easily undo the "repeal" of the mandate, Republicans need to be thinking about making it invulnerable.  The way to do that is to repeal the ACA in its entirety and replace it with something better.  Democrats will not help Republicans do this, even if the health care system were roiling.  That means Senate Republicans need to be prepared to end the filibuster.

With the Trump Tax Cuts, Majority Leader McConnell and GOP senators may have thought they were out of the woods and wouldn't need to again consider ending the legislative filibuster.  But how likely is it that Chuck and Nancy will allow their caucus to cooperate on any big bills this year?  I'd guess not very.

Jon N. Hall of Ultracon Opinion is a programmer and analyst from Kansas City. 

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