The Toothless Mandate?
Commenter Boegiboe writes:
I’m really confused about this whole health care fine stuff. Can someone (preferably a lawyer or law student) please explain what is wrong with FactCheck.org’s analysis of this law?
It seems like it has no teeth. Can it grow some? (Please read the “Full Answer” part of the link: I’m not trying to point to the 16,500 IRS agents packing heat issue.)
Which Trumwill seconds. (Full disclosure: I’m Boegiboe’s husband.)
As we all agree, FactCheck.org’s analysis begins by hitting away at a strawman that doesn’t concern us. Even if the IRS doesn’t hire 16,500 agents armed with tear gas, grenade launchers, and tit clamps, it’s still worth asking about precisely how the “mandated” compliance will be enforced. And it looks, weirdly, like there won’t be any enforcement at all. FactCheck.org makes the compulsory mandate sound downright voluntary:
The law does make individuals subject to a tax, starting in 2014, if they fail to obtain health insurance coverage. But IRS Commissioner Douglas Shulman testified before a hearing of the House Ways and Means Committee March 25 that the IRS won’t be auditing individuals to certify that they have obtained health insurance. He said insurance companies will issue forms certifying that individuals have coverage that meets the federal mandate, similar to a form that lenders use to verify the amount of interest someone has paid on their home mortgage. “We expect to get a simple form, that we won’t look behind, that says this person has acceptable health coverage,” Shulman said. “So there’s not going to be any discussions about health coverage with an IRS employee.” In any case, the bill signed into law (on page 131) specifically prohibits the IRS from using the liens and levies commonly used to collect money owed by delinquent taxpayers, and rules out any criminal penalties for individuals who refuse to pay the tax or those who don’t obtain coverage. That doesn’t leave a lot for IRS enforcers to do.
This seems to invite massive noncompliance, no? If all I need to do is send the IRS a form — which they won’t look behind — saying that I have the proper insurance, then it really is just that easy to evade the mandate. Alternatively, I can just send in a little note saying “No, thank you, I do not choose to pay,” and then they fine me. But they have no power to collect the fine. The assessments pile up, and I just smile and wave.
Yes, I know this sounds nuts. I struggle though to find any more reasonable meaning to the above words, or any more reasonable meaning to the text of the law itself.
I’d ask you to keep in mind, too, that the far right already has a cadre of folks dedicated to the proposition that you don’t have to pay your income taxes, either. Oh my do they have their theories — the Sixteenth Amendment wasn’t duly enacted; the enabling legislation applies only to a particular class of people, from which you can exit; taxes are assessed only to users of the ZIP Code system (yes, seriously). All of which are met, deservedly, with prison time.
By contrast, the “out” I see in the above analysis sounds downright reasonable. Still, Boegiboe and I don’t want to go down in history as the evil geniuses who inspired a generation of nutty tax evasionists. We feel pretty sure that this can’t possibly be right. But how is it not right?
On the other wing of American politics, I can’t imagine the degree of imposture it would take to tell the entire American people that they have a requirement to buy health insurance, and they’ll have to pay a fine if they don’t get it — and then, if they decline to pay the fine… um, well, whatever. I just can’t see it happening. Instead I see audits, court judgments, contempt of court charges, and eventual prison time, all of which FactCheck.org appears to disclaim. (Perhaps in its eagerness to cheer for the law?)
So — is this law really toothless? Or did FactCheck.org just make it sound that way to sugar coat it? We’re not making a joke here. We’re sincerely puzzled.