The Jury Talks Back

2/14/2017

ALL HAIL THE KING! Trump’s IRS Will “Turn a Blind Eye” to Enforcement of the ObamaCare Mandate

Filed under: Uncategorized — Patterico @ 10:30 pm

At Reason.com, Peter Suderman reports that the IRS has passed a rule that says they will accept tax returns that don’t indicate whether someone has health coverage. If the report is accurate, the ObamaCare mandate is now optional. It’s pursuant to President Trump’s executive order softening the impact of ObamaCare:

How much difference does a single line on a tax form make? For Obamacare’s individual mandate, the answer might be quite a lot. . . . The IRS was set to require filers to indicate whether they had maintained coverage in 2016 or paid the penalty by filling out line 61 on their form 1040s. . . .

Earlier this month, the IRS quietly altered its rules to allow the submission of 1040s with nothing on line 61. The IRS says it still maintains the option to follow up with those who elect not to indicate their coverage status, although it’s not clear what circumstances might trigger a follow up.

But what would have been a mandatory disclosure will instead be voluntary. Silent returns will no longer be automatically rejected. The change is a direct result of the executive order President Donald Trump issued in January directing the government to provide relief from Obamacare to individuals and insurers, within the boundaries of the law.

This does not sound legal. Suderman quotes experts differing on the matter. Michael Cannon, an ObamaCare expert, says Trump can’t do this:

The move has already raised questions about its legality. Federal law gives the administration broad authority to provide exemptions from the mandate. But “it does not allow the administration not to enforce the mandate, which it appears they may be doing here,” says Michael Cannon, health policy director at the libertarian Cato Institute. “Unless the Trump administration maintains the mandate is unconstitutional, the Constitution requires them to enforce it.”

Some other guy says this isn’t really non-enforcement . . . but his argument on that point is less than convincing:

“The mandate can only be weakened by Congress,” says [Ryan] Ellis [a Senior Fellow at the Conservative Reform Network]. “This is a change to how the IRS is choosing to enforce it. They will count on voluntary disclosure of non-coverage rather than asking themselves.”

The IRS notes that taxpayers are still required to pay the mandate penalty, if applicable. “Legislative provisions of the ACA law are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe‎,” the agency statement said.

Ellis says the new policy doesn’t fully rise to the level of declining to enforce the law. “If the IRS turns a blind eye to people’s status, that isn’t quite not enforcing it,” he says. “It’s more like the IRS wanting to maintain plausible deniability.”

I . . . don’t see the big difference between “turning a blind eye to people’s status” and “not enforcing” the law.

I’m sure plenty of Trump supporters will cheer this — because, you know, Trump. But if you’ll recall, conservatives (including myself) screamed bloody murder — with good reason — when Obama unilaterally decided to delay enforcement of ObamaCare provisions like the employer mandate. For me and for many others, this was a genuine and principled concern. But I think we’re about to find out that, for some conservatives, the complaints about Obama’s actions were pure partisanship — and for these unprincipled hypocrites, non-enforcement is about to be cool again.

When Trump signed this executive order, I urged caution. Let’s wait to see what he actually does with it, I said.

Will Donald Trump’s executive order be used to engage in the type of overreach Barack Obama routinely employed? I’m not sure yet. But if it is, conservatives need to lay down a marker now: this will not be acceptable.

Even if Barack Obama did it.

Well, we’re starting to see how Trump is applying the order, and this is not a good sign.

Look: even if all you care about is policy, the fact is that cushioning the blows from this horrible law make it less likely that it will be repealed. And repeal is what is needed. Until there is a free-market solution to health care, we’re on a slow march towards a single-payer system.

But there’s also more to the issue than policy. This goes straight to the nature of our system: will we be ruled by presidents, or kings? In my previous post I quoted Charles C.W. Cooke rejecting the “turnaround is fair play” argument, and I feel the need to do so again. Here is the key passage from his essential piece on the issue:

I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce. On the contrary: I consider the idea to be a grave and a disastrous one, and I would propose that any such change is likely to usher in chaos at first and then to incite a slow, tragic descent into the monarchy and caprice that our ancestors spent so long trying to escape.

To that passage, I will add this warning from Ninth Circuit judge Alex Kozinski:

Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember the old warning: May all your dreams come true.

If you’re going to help create a king because you think the king you’re helping to create is one you’ll like, don’t come crying to me when the power is wielded with even more force by one you don’t like.

UPDATE: After I first read the article, Suderman posted this correction:

Correction: The IRS did not reject silent returns last year, as this story originally indicated. The plan was to go into effect this year, for 2016 returns, but the IRS reversed course on February 3. Reason regrets the error.

I don’t think this undermines the point of the article, but it is worth noting.

[Cross-posted at RedState.]

19 Comments »

  1. No one despised Obamacare more than I do, and I want that awful thing dead.

    As for the how… I fully agree that this is the same sort of unconstitutional method Obama decried when he declared he didn’t have the power to do amnesty without congress – then did it anyway. Likewise, many of his other “I have my pen and my phone” overreaches.

    Wrong is wrong, so it’s not okay just because Obama did it. The president is supposed to see that the laws are faithfully executed – not pick and choose which ones he’ll enforce.

    So, my initial inclination was to oppose this – until I thought it through, and then read the piece Patterico linked. Yes, I agree, it’s suicidal to be okay with this. But, it’s equally suicidal to have a system where one side only gets to behave this way – and we already have that. It’s also worth noting Democrat promises of just a few months ago to do even more of the same, plus kill the filibuster entirely.

    So, I’m reluctantly in the “Ram it down their damn throats” camp on this one, because that’s the only hope I see of getting them to realize the mess they’ve created and get onboard in fixing it. The other road is to try leading by example, but that’s proven to be a fool’s gambit, given the enemy’s mindset.

    For now, they that have sown the wind shall reap the whirlwind.

    Comment by Arizona CJ — 2/14/2017 @ 11:34 pm

  2. Well, I should have waited a few minutes before posting my above comment. Reason has issued a correction to its article;

    Correction: The IRS did not reject silent returns last year, as this story originally indicated. The plan was to go into effect this year, for 2016 returns, but the IRS reversed course on February 3. Reason regrets the error.

    So, all Trump has done, if anything, is let the Obama administration’s old rule stay in place.

    Comment by Arizona CJ — 2/15/2017 @ 12:01 am

  3. Federal law gives the administration broad authority to provide exemptions from the mandate.

    If the law gives the President broad authority to provide exemptions, then he can legally exempt everyone, can’t he?

    Comment by Yoda jr — 2/15/2017 @ 6:45 pm

  4. The law written by Congress provides specific exemptions. There are many exemptions but that doesn’t mean the President can exempt everyone. He only has authority to exempt according to the categories set forth by Congress in the legislation.

    Comment by DRJ — 2/15/2017 @ 7:12 pm

  5. There really are a lot of exemptions. It’s as if Obama and the Democrats weren’t really serious about this law.

    Comment by DRJ — 2/15/2017 @ 7:15 pm

  6. No, it was a tortilla shell that sibelius stuffed with regulations.

    Comment by narciso — 2/15/2017 @ 7:17 pm

  7. Yes DRJ, I understand about the exemptions that have been set up by the by Obama’s Secretary of Health and Human Services. (Not being snarky, so please, please don’t take it that way) Doesn’t the ACA give the President an/or his Health Secretary the power to establish exemptions and also cannot the President issue waivers? (Correct me if I am wrong) Also didn’t Obama issue waivers to the unions? Was this something that was done extra-legally or is it a power that was given him in the ACA?

    Inquiring minds would really like to know!

    Comment by Yoda jr — 2/15/2017 @ 7:40 pm

  8. PS: Because if it is in the ACA, then that would mean that Trump can legally issue the waiver/exemption to every person, wouldn’t it?

    Comment by Yoda jr — 2/15/2017 @ 7:43 pm

  9. The President cannot legally authorize exemptions or waivers unless the law delegates that power to him. The only power delegated by the law that I know about is the power to let states experiment with their programs and still get federal funding. IMO waiving IRS rules does not fall within that power.

    I believe Obama also waived the mandate and other provisions during the past several years. I do not believe he could legally do that, nor can Trump, but there is probably no way to stop them. It doesn’t make either of them right.

    Comment by DRJ — 2/15/2017 @ 8:13 pm

  10. But if the HHS Secretary has the authority under the law to write the exemptions (as well as interpret and decide who is eligible), then Trump could use that to authorize an exemption for virtually everyone. But I hope he doesn’t because then this law will never go away.

    Comment by DRJ — 2/15/2017 @ 8:26 pm

  11. While I agree with Our Gracious Host in principle, it’s been well documented that Obama rewrote a lot of the law on the fly, with no clearly established authority to do so, and it was allowed to slide.

    So, in this particular case, in regards to this specific law, I’m willing to give Trump a similar slide to undo parts of the law. Obama rewrote effective dates written in black and white in the law, granted exceptions all across the board, and did a host of of other things that should have been challenged.

    My main concern is that, by mitigating some of the nastier aspects of the law, Trump might be easing the demand for repeal.

    I believe it was Teddy Roosevelt who, as New York Police Commissioner, wanted to get certain laws repealed. He chose to make his case by enforcing those laws as rigorously and strictly as possible, answering all complaints with “it’s the law. If you don’t like me enforcing it, change it” or words to that effect. Eventually, the law was changed.

    We are in a war against people who have zero principles and zero scruples. If we hold ourselves and our chosen champions to complete fidelity to rules and principles, we’ve already lost.

    Yes, Trump is a lousy person. But he seems to be the best equipped to win this fight. To me, he seems the closest to a Grant, a Sherman, or a Patton that we have.

    Comment by Jenos The Deplorable — 2/16/2017 @ 10:30 am

  12. Jenos:

    While I agree with Our Gracious Host in principle, it’s been well documented that Obama rewrote a lot of the law on the fly, with no clearly established authority to do so, and it was allowed to slide.

    So, in this particular case, in regards to this specific law, I’m willing to give Trump a similar slide to undo parts of the law.

    Fine, but please admit that you don’t really believe in the Rule of Law. You believe in fairness, the notion that law should be whatever the decider thinks will give us the best/most fair result instead of what the law provides. Or we could also call it the tit-for-tat doctrine from the playground.

    Comment by DRJ — 2/16/2017 @ 1:32 pm

  13. it does sound like a “turnabout is fair play” argument. I tried to rebut that in the post. Would be interested in arguments that are responsive to what was argued in the post, Jenos.

    Comment by Patterico — 2/16/2017 @ 6:04 pm

  14. Yes, I do believe in a limited form of “turnabout is fair play.” In the particular case of ObamaCare, it was passed and defended on several extremely unacceptable manners — the “reconciliation,” the wholesale waivers, the outright postponement of hard dates, and so on.

    I have very little problem with using the same kind of questionable tactics to end something that were used to start it. In fact, I find a certain poetic justice in the notion.

    Further, the people who used and cheered on such measures must not be allowed to now hide behind “the law is the law.” They must be shown, forcefully, that they cannot abrogate the social contract and then expect to claim its privileges.

    Here’s a very brief clip that, I think, illustrates my point.

    When one side deliberately and repeatedly violates the compact, simply saying “we won’t stoop to their level” far too often ends in defeat. A deliberate, measured response that illustrates that abiding by the compact benefits both parties, and violating it will not be tolerated without consequences.

    And by “measured,” I mean deliberate, limited, and linked to the original violation. I do not mean “proportional,” however. It should hurt, and it should hurt significantly more than the original violation gained.

    The alternative is to maintain our principles and lose with dignity. My problem with that is that I see that as putting my own ego and self-esteem ahead of the good of the nation, and I’m willing to take the personal karmic hit for the greater good.

    Yes, this is all a whole lot of rationalizing and justifying what I admit is improper behavior. I don’t like it, quite possibly almost as much as you folks dislike it.

    It’s a choice between the lesser of two evils. And yes, while I am still choosing an evil, I see the alternative as letting others make the choice — and they’ve already committed to the greater evil.

    Comment by Jenos The Deplorable — 2/16/2017 @ 7:45 pm

  15. You know, there is a point where its not Tu Quoque any more but rather, simply precedent.

    Comment by SPQR — 2/17/2017 @ 9:00 am

  16. “The alternative is to maintain our principles and lose with dignity.”

    The alternative is to follow the law.

    Comment by DRJ — 2/17/2017 @ 9:52 am

  17. “The alternative is to follow the law.”

    And lose.

    While following a law that was passed and enforced (and not enforced) through illegitimate means.

    I respect your principles, and your commitment to abide by them. Hell, I agree with your principles. I’m just not willing to limit myself when the fight is this important, and the other side is wholly committed to winning by any means necessary — and is not only expecting me to play by the rules they’ve so vehemently discarded, but counting on it.

    Our willingness to keep playing by the rules while they are completely unfettered is baked into their strategy. I won’t go by their script, because I know how it ends — and it’s not a conclusion I intend to accept.

    Comment by Jenos The Deplorable — 2/17/2017 @ 10:08 am

  18. You are picking the easy way to win but it will hurt us in the long run. It will be much harder to follow the law because Congress will have to act.

    As for losing, I submit that the way to lose is to let Presidents change laws as they please. In this case, letting Trump decide not to enforce the ObamaCare mandate gives Congress an excuse to let ObamaCare stay around instead of repealing it. Why not? It’s not hurting anyone. To me, that is really losing.

    Comment by DRJ — 2/17/2017 @ 10:53 am

  19. Well, of course I agree with the notion that suspending some of the Obamacare penalties makes it easier to postpone ending it — I said that myself.

    I think where we disagree is in the advisability of using the same tactics used to put it in place to put an end to it. As I said, I respect your principles and your commitment to them, and I recognize the potential downsides you outline, and I even envy a little your resolve to keep your honor.

    My worries, though… Mel Brooks kinda nailed it for me.

    To me, in 2012 we nominated one of the most fundamentally decent people to run for president in a very, very long time. And he didn’t just get beaten, he got stomped. To the point that it’s now tremendous fun to remind the Obama backers about how he called what’s happened with Russia perfectly — and was smugly insulted and mocked for his foresight.

    We don’t have someone as straight-laced and upright and decent as Mitt Romney to bear our standard. We have Donald Trump, and if there’s one thing you can count on Trump to do, it’s to act like Donald Trump. He’s not going to even look at the Romney playbook.

    You dance with them that brung you, you go to war with the army you have, you use the best tool you have at hand for the task at hand. You can’t let the perfect be the enemy of the good.

    Trump’s the only president we have, and that ain’t gonna change any time soon. And we only have a limited number of methods and opportunities to try to check him. I say we save those until absolutely necessary; at the moment, he’s breaking principles, but he’s breaking them in precisely the same manner and context as the other side used to counter their actions. I can tolerate that for now.

    Plus, we can count on folks like you to remind us to call out these actions. We might not always accept your protests, but I will always listen.

    Comment by Jenos The Deplorable — 2/17/2017 @ 5:27 pm

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