Trump Should Enforce Obamacare’s Individual Mandate

I was initially pleased when President Trump signed an executive order on day one of his administration, ordering executive agencies to soften enforcement of regulations and that no penalties, taxes or fines be imposed by the IRS on anyone not in compliance with the individual mandate in Obamacare. His reasoning is that by the time April 15 arrives, the IRS would no longer have the authority to impose penalties, taxes or fines because the individual mandate will no longer exist.

Andrew Napolitano says Trump’s executive order is “a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government’s laws and its administration of them.”

He spelled out the reasoning very well, stating facts about Obamacare that have been known ever since 2010, when the Democrats rammed it through Congress without a single Republican supporting it.

“Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone’s right to purchase a lawful good or not to purchase one. He also asserted that ObamaCare does not make economic sense because its regulation of the practice of medicine and its administration of health insurance have resulted in a diminution of choices for consumers, which in turn has raised premiums, as well as deductibles, and chased primary care physicians from the marketplace. The Obama mantra that you could keep your doctor and your health insurance under ObamaCare proved to be patently false, Trump argued.”

Not enforcing the individual mandate sounds great and I can see how it would be very pleasing to many people who have considered Obamacare to be a train wreck, but the problem with doing that is the individual mandate is still the law. As ridiculous as it is and as wrong as the Supreme Court was to uphold it, the individual mandate is still the law.

Sure, Congress may be about to repeal & replace Obamacare. Or maybe just modify it and keep parts of it. Depends on what day it is and who you talk to.

The first bill presented to replace Obamacare was by Senators Bill Cassidy and Susan Collins. Their bill, called the Patient Freedom Act of 2017 was said to give states control of health care but also allow states wishing to keep Obamacare to do so. Since Obamacare gives the federal government control over health care and health insurance, that’s hardly a ‘fix’ to the train wreck. The bill would remove some aspects of Obamacare, including the individual mandate, but leaves the Obamacare system intact. Not good. Christopher Jacobs wrote in The Federalist that the Patient Freedom Act would actually be worse than Obamacare, including dramatically expanding taxpayer funding of abortions. 

Does that sound like a good plan?

An important question to ask is, do Republican lawmakers really want to repeal Obamacare? Some of them seem to be more concerned with how it will affect them politically than whether or not it is good for the country. 

Republican lawmakers aired sharp concerns about their party’s quick push to repeal the Affordable Care Act at a closed-door meeting Thursday, according to a recording of the session obtained by The Washington Post.

The recording reveals a GOP that appears to be filled with doubts about how to make good on a long-standing promise to get rid of Obamacare without explicit guidance from President Trump or his administration. The thorny issues with which lawmakers grapple on the tape — including who may end up either losing coverage or paying more under a revamped system — highlight the financial and political challenges that flow from upending the current law.

Senators and House members expressed a range of concerns about the task ahead: how to prepare a replacement plan that can be ready to launch at the time of repeal; how to avoid deep damage to the health insurance market; how to keep premiums affordable for middle-class families; even how to avoid the political consequences of defunding Planned Parenthood, the women’s health-care organization, as many Republicans hope to do with the repeal of the ACA.

Of particular concern to some Republican lawmakers was a plan to use the budget reconciliation process — which requires only a simple majority vote — to repeal the existing law, while still needing a filibuster-proof vote of 60 in the Senate to enact a replacement.

“The fact is, we cannot repeal Obamacare through reconciliation,” McClintock said. “We need to understand exactly: What does that reconciliation market look like? And I haven’t heard the answer yet.”

Several important policy areas appeared unsettled. While the chairmen of key committees sketched out various proposals, they did not have a clear plan for how to keep markets viable while requiring insurers to cover everyone who seeks insurance.

Republicans are also still wrestling with whether Obamacare’s taxes can be immediately repealed, a priority for many conservatives, or whether that revenue will be needed to fund a transition period.

And there seems to be little consensus on whether to pursue a major overhaul of Medicaid — converting it from an open-ended entitlement that costs federal and state governments $500 billion a year to a fixed block grant. Trump and his top aides, including counselor Kellyanne Conway, have publicly endorsed that idea. But doing so would mean that some low-income Americans would not be automatically covered by a program that currently covers 70 million Americans.

Will Obamacare really be repealed & replaced? Likely, but the question remains whether or not the replacement will be an improvement or just make the situation worse than it already is. Will the individual mandate be repealed? And by April 15th? It doesn’t look good. It appears to me that lawmakers don’t have the foggiest notion of what they’re going to do with this mess.

So back to Trump and his executive order.

I believe the individual mandate is unconstitutional and an outrageous imposition on the people of this country. Not enforcing it sounds great. However, it’s a law duly passed by Congress and declared constitutional by the Supreme Court. Agree or disagree, it’s the law.

Ask yourself if you really think the president should be able to decide which laws his executive branch will or will not enforce.

Were you pleased with Obama refusing to enforce our immigration laws? Were you pleased with the decision to let Hillary Clinton escape prosecution? Were you pleased when the Obama administration bypassed Congress and gutted the work requirement in the Temporary Assistance for Needy Families Program? Were you pleased when Obama decided his administration would non longer enforce certain federal drug laws? 

You can’t have it both ways. If you’re happy with Trump not enforcing the individual mandate then you have no right to complain about any lack of law enforcement from the Obama administration. 

What about the next president? If history is any indication, the next president will likely be a Democrat. Will you afford him the same latitude in deciding which laws to enforce or not enforce?

The United States is a nation of laws. Laws duly passed by Congress, popular or not, should be enforced. If the people no longer want a law enforced, Congress should be petitioned to have it repealed. That’s the way it works. The president should not have the authority to arbitrarily decide which laws he likes or doesn’t like and direct enforcement accordingly.

The Constitution says in Article II, Section 3 that the president “shall take Care that the Laws be faithfully executed…”

In a case titled In Re Aiken County, the U.S. Court of Appeals provided a description a few years ago of the ‘Take Care Clause’ and the obligations incumbent on the president:

Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional objection to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.

The individual mandate is a statutory mandate declared to be constitutional by the Court. Trump cannot decline to enforce it due to ‘policy objections.’

In his first inaugural address, President Ulysses S. Grant said, “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

Obamacare is a bad and very obnoxious law. If President Trump wants to ensure that Congress actually repeals it, he needs to enforce it stringently until such time as the people’s representatives get their act together.

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