Skip to main content

Taxstereogram

On Thursday, June 28, 2012, the Supreme Court of the United States decided that requiring all individuals to purchase health insurance from a private corporation, or suffer a penalty, is an unconstitutional exercise of Congressional power, but if you stare at the Patient Protection and Affordable Care Act (PPACA) for long enough, at a certain angle, in a certain light, you can see a tax form, materializing above the viewable details of the act. Since Congress has plenty of latitude on taxing schemes, the health insurance tax, previously known as the individual mandate, was left standing as is.

This great innovation from Chief Justice Roberts was hailed as “A Marbury for our time”, referring to the landmark case of 1803 where Chief Justice Marshall asserted the right of the Court to invalidate acts of Congress if judicial review concluded that the acts are unconstitutional. The Roberts Court of 2012 is expanding the definition of judicial review from the review of actual acts of Congress to the review of what could have been acts of Congress, or a contextually appropriate mixture of the two. The trick here is to know when to plainly look at the legislation and when to concentrate and apply a wall-eyed or cross-eyed technique to discern the hidden meaning that could have been hidden by the content in plain view.

The Court began by looking at the PPACA as it appears to the untrained eye and declared that the Anti-Injunction Act (AIA) is not applicable to the penalty required from those who choose not to obey the individual mandate because said penalty is not a tax and the AIA is only applicable to taxes. This was followed by a blistering opinion explaining that the Commerce Clause of the Constitution cannot be expanded to give Congress the ability to force people to become active in a particular form of commerce by imposing penalties on inactivity, which is both unnecessary and improper. However, as the Chief Justice wrote, “[t]hat is not the end of the matter”. While continuing to look closely at the act, it seems that what looked like a penalty for not buying insurance to the untrained eye, is shaping up to be “imposing a tax on those who do not buy that product”. Ironically, a few pages prior to this momentous discovery, Chief Justice Roberts found it necessary to quote John Marshall in Gibbons: “[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said”. It seems that today’s enlightened patriots need not be understood in the same way, and there is no reason to assume that they actually intend what they say. Fair enough. At this point, it must have been too late to apply this realization to the AIA ruling, but not too late to let the individual mandate survive the constitutional challenge, because Congress can tax almost as it pleases. Almost.

If you think about it, applying a penalty to inactivity is just the Yin to the tax break Yang. So instead of giving those who purchase insurance a tax break, we can exact a penalty from those who do not purchase insurance. The latter has the advantage of increasing revenue without the added step of increasing the general tax burden first, and has the same effect. We are all familiar with tax breaks for various activities and the difference is only semantic. For example, instead of giving you a tax break for buying a fuel efficient car, the government could impose a penalty if you buy a regular car. Instead of a tax break for your mortgage, you pay a penalty if you choose not to buy a home. Instead of getting a tax break when you have a new baby, the government could penalize you if you don’t. Same thing, right? Yin-Yang.

This may be by far the most significant innovation introduced by this ruling. Congress now has a brand new, one-step, process to raise revenues without explicitly raising taxes. Better than cold fusion and almost as good as perpetuum mobile. Who needs to torture the old Commerce Clause when our visionary conservative Chief Justice set a powerful precedent for endless ways in which to penalize (i.e. tax) the people?

Comments

Post a Comment

Popular posts from this blog

Transforming Health Care: Values and Cultural Preferences

On his campaign trails, Harry Truman used to call on citizens to go out and vote for themselves, in their own selfish interests. It may sound shallow and divisive, but Harry Truman believed that the individual interests of the people should trump the special interests of the powerful few, and that’s how Democracy should work. Those were simpler times, but the logic still applies today, although it’s becoming increasingly difficult for people to figure out where their selfish interests lie, not because interests have changed, but because the art of spinning messages and the sheer amounts of cash thrown at it have grown beyond what Harry Truman could have imagined. Take for example the controversy around the Patient Protection and Affordable Care Act of 2010, a.k.a. Obamacare, which was spun into one little question: do we want the government to give more poor people health insurance, while forcing everybody else to pay for it? If yes, vote Democrat. If no, vote Republican. But Obamacare...
Post a Comment
Read more

De Novo EMR Design Part II: The Quest for Information

The Edwin Smith papyrus ca. 1500 BCE In Part I of this series, we engaged in a design exercise for an imaginary software product that has no stated (or hidden) purpose other than to improve patient care. Following our initial definition of patient care, we formulated three general requirements and several constraints, none of which were specific enough to start building software tools from. The next step in our journey will break down each requirement into more specific tasks. What follows below will seem like an unnecessary and laborious statement of the obvious to some. However, I would submit that the careless bypassing of fundamental analysis is precisely what led us to where we are today, and even if we are forced to cut corners eventually, it is imperative that we define all corners prior to cutting them, instead of feigning shock and surprise after the fact. So without further ado, let’s start where we left off. System shall assist with gathering information from various sourc...
Post a Comment
Read more

In Memoriam FFS

On April 16, 2015, President Obama signed into law H.R. 2, the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), effectively sentencing Fee for Service (FFS) to death. The best explanation for how FFS is destroying the nation comes from Charles Munger , vice-chairman of Berkshire Hathaway and ad-hoc health luminary, who is equating what American doctors do, to raising rattlesnakes so they can collect the bounty for dead rattlers offered by the government in an effort to combat a growing snake problem. Based on this, and other equally compelling insights, FFS was found responsible for willful destruction of our great nation. A few months before Congress delivered its coup de grâce to the FFS system, the Secretary of Health and Human Services, explained to the elite group of NEJM paying customers, how “30% of Medicare payments should be tied to quality or value through alternative payment models by 2016 (50% by 2018)”. Other than transforming traditional Medicare into a vi...
Post a Comment
Read more