The Real - and Simple - Reason For Finding MAObamaCare Unconstitutional

In the April 5th 2012 Wall Street Journal,  writer Daniel Henninger gave readers a salient excerpt of the mandate section of BIG BRObama’s Hell-th Care bill, also known as “ACA.”

    The ACA calls the act of purchasing insurance a “required contribution.” Naturally, many will wonder if they can get out of this. That depends on the meaning of “required contribution,” as defined in “Chapter 48—Maintenance of Minimum Essential Coverage, (e) Exemptions, (B) Required contributions:

“For purposes of this paragraph, the term ‘required contribution’ means . . .: (ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan though the Exchange), reduced by the amount of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year).”

My emphasis above.

So, where is the VERB for “the annual premium,” which would seem to be the subject of the verbiage following it?  If it is supposed to be “reduced,” that is disallowed because of the “by” clause following it.  “Reduced” seems therefore to be an adjective, but what is it modifying?  The last noun is “Exchange” but how can that be “reduced” ?  Perhaps they mean “is reduced” or “will be” reduced?

And note the lack of the subjunctive in the parenthesis!

One interpreter has claimed that “reduced” might modify premium” but admits that, with so many intervening nouns, it is impossible to say for certain.

Professor William Jacobson of Cornell University has published essays about he has taken sections of “ACA” (i.e. the Hell-thCare Bill) to see if they make sense.  He quotes from p. 780 of the bill:

    (3)(A) The portion of the amounts expended for medical assistance for services described in section 1902(a)(13)(C) furnished on or after January 1, 2010, that is attributable to the amount by which the minimum payment rate required under such section (or, by application, section 1932(f)) exceeds the payment rate applicable to such services under the State plan as of June 16, 2009.

My emphasis.

“Portion” has no verb!  Or does it?  If “exceeds” is the verb for “portion,” does it really mean therefore that the portion is expected to exceed rates from June 16, 2009?  Why would it say that?

Professor Jacobson also quotes another section chosen at random by (appropriately) throwing darts at the thing:


     Section 1171 goes to provide another cost-sharing provision by amending subsection (B)(ii) by adding the following:

‘‘(ii) PERMITTING USE OF FLAT COPAYMENT OR PER DIEM RATE.—Nothing in clause (i) shall be construed as prohibiting a Medicare Advantage plan from using a flat copayment or per diem rate, in lieu of the cost-sharing that would be imposed under part A or B, so long as the amount of the cost-sharing imposed does not exceed the amount of the cost-sharing that would be imposed under the respective part if the individual were not enrolled in a plan under this part.’’

Are you having fun reading this?  I’m not.  This is a tough slog through mind-numbing verbiage which accomplishes limits on cost-sharing, but does not reveal the implications of such cost sharing limitations for people who prefer alternatives to traditional Medicare.  Might this have the effect of eliminating the alternatives to traditional Medicare because of the limitations on cost-sharing? Am I paranoid, or correct, or both?

I would say “Unknown.”  Here is the problem: by using the subjunctive in a contrary-to-fact condition, the paragraph assumes that every individual in America is – in fact – “enrolled in a plan under this part.”  But that is not true!!!  In a contrary-to-fact condition, one assumes the opposite of the truth, to show a potential result, which however cannot occur.  The paragraph, because it takes something that is NOT a fact, and then turns it on its head, makes no sense.

Example: assume that the sun is shining.  I come up to you and say: “If the sun were shining, we could play baseball.”  You can only assume that I am demented, because I have assumed that the sun is not shining, and that we cannot play baseball.  If, however, I say: “If the sun were not shining, we could not play baseball” then all is fine!  (Contrary to fact: Fact I – the sun is shining, Fact II – we are playing baseball.)

See Professor Jacobson’s blog for this and other such examples of vagueness, if not incomprehensibility, taken at random from the “ACA”:


And from Wikipedia on the unconstitutionality of vague laws:

In the case of vagueness, a statute might be considered void on constitutional grounds. Specifically, roots of the void for vagueness extend into the two due process clauses, one in the fifth and one in the fourteenth amendment to the constitution. The courts have generally determined that vague laws deprive citizens of their rights without fair process, thus violating due process.

The following pronouncement of the void for vagueness doctrine was made in Connally v. General Construction Co., 269 U.S. 385 (1926) by Justice Sutherland:

[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.


Allow me to emphasize that last part:

…and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law


San Francisco Town Clown Nancy Pelosi: “We have to pass the bill, so we can find out what’s in it.”


Really? The Founding Fathers weep at such a statement, as should we all, at the stupid arrogance and contempt for Law that it contains.





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