Take That to the Bank… Or at Least Open Your Account to Us, Mr. President.

“The Reptile”

 

President Barack Obama is a joke. To put it in terms that the younger generation would understand, President Obama’s second term closely parallels the lyrics to Lupe Fiasco’s [B-rated] hit “Kick Push.” Obama kicked through the competition, pushed his way into the presidency and is now coasting through his presidential term. I have to admit, President Obama is a lot like myself. He was an attorney after all, so most of his controversial statements lately are on-point to his previous educational experiences. Albeit I would assume the President did not relish in so many vacations back then, but law school was definitely a win-win for the President’s public speaking agenda. I believe a few examples are necessary in order to understand what I mean. “Kick it!” (sorry, I had to continue with the music theme.. plus, I really like the Beastie Boys).

“Three Sides to A(n Attorney) Story”

 

(1) The Uncompromiser

 

My days in law school were filled with definite answers. These answers were based on a rule of law or case law that was directly on point to the educational topic at hand. Just like law school, a presidential campaign is filled with definite answers to questions that are predetermined. It is obvious what questions are going to be asked and how each candidate (Democrat or Republican) will answer those questions. The difference lies in the manner and tone as to which the candidate answers. If you sound confident in your answer, the general public will believe you. Case in point: the “Change” campaign by President Obama. The campaign in and of itself was brilliant. Who doesn’t want change? And who didn’t want change back then? Change sounded wonderful, as did President Obama’s pledge to remove troops within 16 months of taking the presidential office.  Removing troops during a time of war and bringing them back to a land of peace. This statement was uncompromising, unbending, and (dare I say it?) unyielding.

 

(2) The Backtracker

 

Although definite answers in law school were great, some answers were not good enough… or were they? Law school professors are to students as the media is to the President. Law school professors always try to trip up students into choosing the wrong answer when they were correct in the beginning – or at least allowing for an uncompromising answer to sound a little more compromising. One professor comes to mind – Professor Matt Reiber at Florida Coastal School of Law. He is an extremely educated and talented professor that knows how to twist your mind into a Rubik’s cube (then twist it back again in an ever-so swift fashion). In an essence, he wanted you to think of every scenario no matter if it was different from the answer you provided in the beginning. He made you think (much as I want my readers to do). Either way, the media is like this for the President. At this point, the President is being kept in check by the media (eh, go with me here). Because the media is finally catching him on every lie, it has to publish something whether it wants to do so or not. In this case, let’s continue with the removal of troops situation. According to President Obama as of the latest he did not want to pull the troops out of Iraq. Let me repeat: the guy who wanted the troops removed from Iraq during his presidential campaign now states he had nothing to do with pulling the troops out of Iraq.  This was apparently not his decision. So… whose decision was it exactly? Maybe the President took a lesson from his law school professors, or maybe he failed to understand that backtracking only leads you to look like a fool in front of your peers.

 

(3) The Concealer

 

Masking things that occur was a highlight of my law school career. After all of the definitiveness and backtracking, you just want to cover up your mistakes (or your correct answers that after backtracking ended up as mistakes) and run and hide.  I would normally retreat to my apartment, drown myself in a bottle of Lucky Duck wine and watch a few episodes of Gossip Girl.  However, if I could have afforded it, I would have concealed my mishaps like our dear President. Running around Martha’s Vineyard or playing golf (barf!) on a beach in Hawaii sound like great ways to not only make myself feel better but also conceal every pain I had of being called on in a law school class.  President Obama seems to take vacations at the most inopportune times – most recently during the ISIS terrorist situation. If you have been living under a rock and haven’t heard of this, you have some reading to do. There is nothing like a good “terrorists behead U.S. journalist on videotape” story to get your blood boiling. That doesn’t working for you? How about the headline “terrorists beheading Christian mothers and children?” Yeah, now I have your attention. Either way, concealment of the fact that the President took troops out of Iraq (or did he?) only to watch his plan blow up in smoke has landed the President in hot water. Time to go take a cold bath filled with regret, Mr. President.

“Closing Time”

I know I haven’t written in awhile… I have been pretty busy with work. However, this article is not the end. This article is just the precursor to my next article all about the endearing presidential hopeful, Hillary Clinton.  If you thought my previous articles were bad, you will want to mark your calendars for the next one. Remember friends – do your research and read The Constitution.

Drop the mic.

 

Song References: “Take That To The Bank” – Shalamar; “The Reptile” – The Church; “Fight for Your Right (To Party)” – Beastie Boys; “The Sides to a Story” – Joe Budden; “Closing Time” – Semisonic.

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Obamacare Pt. 1: The Individual Mandate – Steal from the Rich, Give to the Poor

OBAMACARE: THE DIRTIEST WORD IN THE ENGLISH LANGUAGE?

Today I embark on a journey into the unknown (and sometimes unseen) land of Obamacare. Do not worry if you have not yet read this policy – Nancy Pelosi is probably still in the same boat. Let’s start with the basics of Obamacare.

Basics of Obamacare

Actual Title: Patient Protection and Affordable Care Act

Aliases: Obamacare (note: this is my personal reference to the law, as Obama himself uses the term), Affordable Care Act (“ACA”), Taxcare

Creation: Signed into law by President Barack Obama on March 23, 2010; upheld by the Supreme Court of the United States in a 5-4 vote on June 28, 2012

Initial Goal: “To give more Americans access to affordable, quality health insurance & reduce growth in health spending in United States.” [note: this was not supposed to override or replace private insurance, Medicaid, or Medicare]

Rollout of Law: Enacted in 2010; starts rollout in 2013-2014 and continues throughout the year of 2022

Actual Document: Obamacare has ten titles spanning over 1,000 pages with most key provisions under Title 1, which is around 140 pages.  Most of the bill encompasses the problems associated with Medicare.  Prior versions of Obamacare as a bill were 2,400 pages. The final document as produced, however, is actually around 1,000 pages (depending on the website or PDF document).

Favorite Lines from Obamacare Deliberations: (1) “We have to pass the bill so that you can find out what is in it.” – then-Speaker Nancy Pelosi (D); (2) “If Obamacare had been fully implemented when I caught cancer, I’d be dead.” – GOP presidential candidate Herman Cain (R); (3) “I have no problem with folks saying, ‘Obama cares.’ I do care. If the other side wants to be the folks that don’t care, that’s fine with me.” – President Obama (D), responding to Republican use of the term “Obamacare”; (4) “He’s the baby daddy of Obamacare.” – Senator Dick Durbin (D-Ill.) referring to GOP presidential nominee Mitt Romney; (5) “If I’m the godfather of this thing, then it gives me the right to kill it.” – GOP presidential nominee Mitt Romney (R); (6) “I just see a huge train wreck coming down.” – Senator Max Baucus (D-Mont.); (7) “I’m a physician. I’m quite worried about the privacy of medical records…I’m quite worried that your medical records now will be evaluated by the IRS.” – Senator Rand Paul (R-Ky.) after IRS scandal

Obamacare: A Big Effing Deal

In the words of Joe Biden, Obamacare is a big effing deal. From additional taxes to unnecessary burdens, you or someone you know will be affected by this law. The next few years of this law’s rollout will not be pretty.  I’m not sure it was the appropriate time to rollout a massive tax on the American people during an economic slump. No matter what statistics the government alleges, everyone is experiencing some sort of decrease in funding or income at this time.  This tax burden hits the younger generation harder than any other generation – as we are left to save the baby boomer generation from themselves. This will be tough considering the job market is tougher to break into than the healthcare market. All in all, I have already come to an educated conclusion that Obamacare is a failure.

During the next four weeks, I will set forth the facts of Obamacare in four different segments. I will not provide my opinion on each of these segments until the end of each. Whether you agree or not, I could care less. I do, however, care that you are educated as to what this law will provide and what it fails to provide.  I care that you understand what we as a country are getting into with Obamacare. Finally, I care that our generation is knowledgeable of this law as it will affect us more than any other generation.

I do not have a list of each of the four segments that I will cover in Obamacare. The available information is never-ending and I am sure that I will not be able to cover everything in these four parts. At this time, however, I am confident in my knowledge of the Individual Mandate (which starts on or around page 143 of Obamacare). I covered this topic somewhat in depth within my tax LL.M. program at University of Denver. Because my background is in tax law, you will have to bear with me if I use terminology that is hard to comprehend. I will try my best to put it in plain English, but if I fail to do so on some of it you will have to give me a break.  If you do not recognize the term, look it up.  It might do you some good to do your own research anyway considering this is a confusing topic as is. I do not want to waste anymore time or space on this blog post with senseless information – let’s begin.

Individual Mandate: A (Large) Tax on American Citizens

The Basics

Starting in 2014, individuals are required under Obamacare to either obtain health insurance, get an exemption from obtaining health insurance, or pay a “per-month fee.”  The health insurance obtained must be the “minimum essential coverage” that complies with the rules set forth under Obamacare.  “Minimum essential coverage” includes most employer-based coverage, Medicare, Medicaid, CHIP program funds, private insurance (unless your insurance does not comply with Obamacare rules, hence all of the talk of rejection letters from private insurance companies), and all insurance within your State’s healthcare marketplace.

If an individual fails to meet the requirements of obtaining health insurance or an exemption the individual is then hit with a “shared responsibility fee,” also called the Individual Mandate (or “IM” as I will refer to it from now on to save space).  The IM is just one of around 20 new taxes created under Obamacare and goes toward funding Obamacare and subsidizing hospitals that will have unpaid hospital emergency room costs.  The IM also provides as a “downpayment” into the healthcare system that you will eventually have to pay into in the future.

Although the IM goes into effect on January 1, 2014, a 3-month continuous grace period provides relief to most Americans searching for health insurance on the marketplace.  Thus, if you fail to obtain health insurance by March 31, 2014, you will have a penalty applied to your taxable income for each month that you do not have health insurance. This is considered the “per-month fee” paid into the system.  However, there is a catch: you must obtain this health insurance by March 15, 2014.  If you obtain this insurance by that date you will be covered starting April 1, 2014. If you obtain your insurance after March 15, 2014, your coverage actually begins on May 1, 2014, and you will be susceptible to the “per-month fee” as you are not covered by April 1, 2014. Instead of a 3-month continuous grace period, this should have been labeled a 2.5-month grace period to avoid confusion.  Let me inform you again – make sure to get covered by March 15, 2014. If you do not, you will be charged for a portion of the IM. I guarantee this will cause confusion, and I guarantee the IRS will collect a ton of penalties during this time.

In order to collect this fee, the IRS will withhold the money from your income tax return refund. There is no other way for the IRS to enforce this provision.  The IRS cannot enforce jail time, liens or any other means of collection.  You must have a refund in order for the IRS to collect the IM.

The IM was meant to be a “trade-off” between the American people and government. The requirement to obtain healthcare is considered the people’s trade-off for the new benefits, rights, and protections including the requirement for those to obtain insurance that could not afford it otherwise.  Proponents of the IM were met with backlash from 26 different states, several individuals and the National Federal of Independent Business.  All combined sued over the unconstitutionality of Obamacare and more specifically the IM. On one side the government claimed that the law was regulating an area that everyone was already in (as purchasing healthcare was already inevitable).  On the other side those against the law claimed that the law forced Americans to enter a market and purchase something against one’s own will. Both sides clashed in the Supreme Court case of National Federation of Independent Business Et. Al. v. Sebelius, Secretary of Health and Human Services, Et. Al., 567 U.S. ___ (2012).

The Court Case of the Century

National Federation hinges on two key parts of Obamacare – Medicaid expansion and the IM. I do not wish to talk about Medicaid right now as I’m sure that will be a topic for a later post. I will be focusing on the IM. This case is around 200 pages long and includes opinions from each of the Supreme Court Justices. I actually read this opinion after it was produced for the American public to read. I will not go into too much detail about this case so as to not bore you.  I will, however, give you a brief synopsis of why the Supreme Court voted to uphold the IM and thereby uphold Obamacare.

The first holding in the case involved the Anti-Injunction Act. The Anti-Injunction Act provides that “no suit for purpose of retaining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. § 7421(a). The government used a tactic to reply to the suit basically implying that those suing must pay for the alleged tax before suing for a refund. The government lost on this notion.  Chief Justice John Roberts, writing the majority opinion for the Court, stated that the government never intended this law to be a tax but instead labeled it a “penalty.” Thus, the Anti-Injunction Act did not apply to the instant case.  However, for purposes of the Constitution, the labeling of “penalty” does not control the Court’s ruling as to whether this is a “tax” from a constitutional standpoint.

Moving forward, the second holding in the case involved whether the IM was a valid use of Congress’s powers under the Commerce Clause and the Necessary and Proper Clause. The Constitution grants Congress the power to “regulate commerce.” Art. I, §8, cl. 3. In order to regulate commerce, there must be something actually in commerce to regulate. According to the Court, most cases involve the regulation of commerce to reach an “activity.” E.g., United States v. Lopez, 514 U.S. 549, 560. The IM does not regulate an activity.  Instead, the IM creates an activity by requiring Americans to purchase into a marketplace for healthcare.  Congress already has a pass to regulate what people do; Congress should not have a pass to also regulate what people do not do. If the Court were to uphold the IM under the Commerce Clause, it would give powers to Congress to regulate and compel commerce. That is too far outreaching and the Court could not foresee that being in and of itself constitutional.

Furthermore, the Necessary and Proper Clause argument does not hold muster in this case. Each of the prior cases decided by the Court upholding laws under this Clause involved “exercise of authority derivative of, and in service to, a granted power.” The IM allows Congress to step outside of its bounds and create the power to regulate the healthcare marketplace. According to the Court, even if the IM is a “necessary” means to carry out the healthcare plan, such expansion of Congress’s power is not “proper” way to go about doing so.

The third holding involves the taxing power of Congress and whether or not the IM should be considered a tax on the American people. According to supporters of Obamacare and Obama himself, this IM has never been a tax on the American people.  However, if the Commerce Clause and Necessary and Proper Clause did not stand (which as I previously explained, both did not stand), the government would have to take the alternative stance that the IM was a tax after all. The government cites the Constitution in claiming that the IM may be upheld within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. Taking this argument, the Court had to decide whether the IM was a tax on those people refusing to purchase healthcare.

The Court first comments on the labeling issue – penalty v. tax. The use of “penalty” disallowed the government’s argument under the Anti-Injunction Act. On the other hand, the use of “penalty” would not disallow the government’s further argument that the IM was in fact a tax. Next, the Court starts to delve into the main issue – whether this penalty could be an undercover tax. In order to support this stance, the Court claims that the penalty does not punish unlawful conduct. The penalty is not too high, the payment is not limited to willful violations, and the payment is collected solely by the IRS through normal means of taxation. Finally, the Court ends with explaining why the Direct Tax Clause does not apply. Basically, the tax is on health insurance and is not like the type of taxes covered under the Court’s previous cases.  Thus, the Court agreed that the IM could be construed to be a tax and the government won the battle for Obamacare on this notion.

The rest of the case involves Medicaid and I am not open for discussion on this just yet. In the end, the government both won and lost it’s case. The government won the case in court on a 5-4 vote (5 for: Roberts, Ginsburg, Breyer, Sotomayor, Kagan; 4 against: Scalia, Kennedy, Thomas, Alito), but the government lost the case with a majority of the American people by handing the citizens the nation’s largest tax in history.

So, what does all of this actually mean?

This means that if you do not have health insurance then you will be taxed for not having health insurance. There are, however, exceptions to this rule. Here is a list of those that are exempt from the penalty enforced by the IRS:

(1) Unaffordable coverage options exemption: If you are paying more than 8% of your household income for health insurance, you are exempt from taking part in the healthcare purchase altogether.

(2) No filing requirement: If your income is below the threshold for filing taxes (i.e., $10,000 for singles in 2013 and $27,800 for married filing jointly with two children in 2013). Thus, if you are under these amounts, you will not have to “obtain minimum essential coverage” as you will technically have no income tax return to file.

(3) Hardship: If the Affordable Insurance Exchange finds you to have suffered a hardship making you unable to obtain coverage then you are exempt from coverage.

(4) Short Coverage Gap Exemption (i.e., 3-month Continuous Gap): Remember that this is actually a 2.5-month rule – not a 3-month as the government would like for you to believe.

(5) Religious Conscience: These are administered by the Social Security Administration.

(6) Healthcare Sharing Ministry

(7) Not Lawfully Present in the United States: You are an undocumented immigrant or are not a U.S. citizen, nation or alien lawfully present in the United States

(8) Incarceration

(9) Indian Tribes: Members of federally recognized Indian tribes 

The above nine exemptions are not required to get healthcare from the market exchange. If you are required to have healthcare and refuse to do so, here are the taxes that will be imposed on your income tax return refund:

2014: $95/person/year or 1% of your Modified Adjusted Gross Income (MAGI), whichever is greater

2015: $325/person/year or 2% of your MAGI, whichever is greater

2016: $695/person/year or 2.5% of your MAGI, whichever is greater

2017: Increases by rate of inflation/person/year or 2.5% of your MAGI, whichever is greater

By 2017, the amounts should eventually level off. The government, however, could amend the percentage attributable to your MAGI.  The word “amended” is used over 100 times in the Obamacare law. It is possible that this legislation is never exempted from further amendments. Here are a few additional random facts regarding the tax:

(1) The total penalty can never exceed the national average of the annual premiums of a bronze-level insurance plan offered through the healthcare marketplace.

(2) The maximum penalty per family is no more than 300% of the minimum penalty amount (using 2016’s numbers – $695 x 300% = $2,085). [as an aside, children under the age of 18 are assessed at 50% of the minimum penalty]

(3) The penalty is also prorated for every month you do not have coverage, though there is no penalty for the 3-month continuous gap rule.  As an example, if you are not covered for six months out of the year you are responsible for half of the penalty.

(4) If you are under the age of 26 you are still allowed to piggy-back off of your parent’s insurance plan.  Remember that if your parent is over the age of 65 and receiving Medicare, you are no longer eligible to be covered under their plan.

(5) If you make less than $45,960 (individual) or $94,200 (family of four) [both of these are considered to be up to 400% of the federal poverty level for 2014 and you must file an income tax return to qualify] you may be eligible for free or low-cost health insurance due to cost assistance subsidies like Tax Credits. These Credits reduce premium costs and cost-sharing subsidies that lower cost-sharing on copays, coinsurance, and deductibles. Subsidies are not available to employees or their dependents if an employer offers “affordable” coverage to meet the “minimum essential coverage” standards under Obamacare. The average marketplace subsidy per subsidized enrollee is said to start at $5,290 in 2014. These subsidies offset your premium costs and lower out-of-pocket expenses. However, as a reminder, these subsidies are considered to be picked up through taxing the American people. Think about this – who is paying for these taxes?

My Thoughts on Obamacare’s Individual Mandate

I believe the smartest person during the deliberations and implementation of Obamacare was Chief Justice Roberts. This is not to say that I agree with what he put forth in the National Federation case, as I am not sure he completely agreed with his own argument. It was an extremely smart move on his part to join the four liberal Justices and justify the IM as a tax on the American people. By implementing the IM as a tax, the Court provided the fatal blow to Obama’s credibility as the leader of this country. Obama ran his campaign on a string of lies, starting and ending with Obamacare. This just shows what kind of person, and what kind of Congressional leaders, we have running our country today.

Moving forward with the case, it is apparent that the IM is unconstitutional.  Anyone who can read our Constitution knows this to be true. It forces the American people to pay into a healthcare system that was created in order for Obamacare to be carried out. Anyone who knows me knows that I am a fan of originalism and finding the original intent behind the Constitution. Another fan of this theory is Supreme Court Justice Antonin Scalia.  In case you did not know this by now, or you could not realize this by my Second Amendment arguments in one of my previous posts, I am also one of Justice Scalia’s biggest fans. Though some of his theories might be outrageously concocted, I believe that his examples are sound and actually make good points. Let me put forth one of his arguments during deliberations in the National Federation case: “Could you define the market – everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore you can make people buy broccoli.” In his argument, Justice Scalia is trying to determine why the administration defines the healthcare market so broadly in Obamacare. Just because the government believes that the failure to purchase healthcare is included in the unenumerated problems the Constitution authorizes Congress to solve does not mean that this is essentially an activity that Congress can regulate. If it is determined later on down the road that broccoli provides essential vitamins and nutrients that prevent cancer, can Congress through the ruling under National Federation consider this an “unenumerated problem” that can be solved through a new law? I’m not sure I can answer that. I’m not sure I would want to answer that.

I highly recommend you either take the time to read this case or read a summary of this case. It is actually a good read and gives you the background to many of our country’s cases surrounding the Commerce Clause and Congress’s taxing power. Plus, why would you want to take anything I am saying as fact? Educate yourself and make your own decision on this matter.

So far, I am also convinced this legislation has a Robin Hood complex (“steal from the rich, give to the poor”). Or in other terms, an approach that “steals from those that do and gives to those that don’t.” I asked you to think about who will pay for those subsidies given to those that cannot afford the healthcare policies provided under Obamacare. The answer is those that can afford it – the “rich.” So, if you are receiving a tax credit from the federal government to support your healthcare you can thank those that are “well off” in our society for making that happen. As a possible preview into a future post, the IM also targets the younger generation. Young, healthy people subsidize older, sicker people. Most experts explain that younger people will eventually expect and receive the same treatment later on down the road.  I beg to disagree with those experts, but I will save that for a later segment.

I am not completely sure what next week’s post will have to do with as I am still making my way through Obamacare. You can be sure, however, that I will have an opinion and I will make you think twice about this law. Let me know if you have any questions or suggestions for next week’s post. Thanks for reading!