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.