The biggest judicial showdown in quite a while is finally over, and here are a couple of things to consider while we’re playing numerology games in an effort to interpret the scribblings of nine citizens in black robes we all now refer to as SCOTUS.
I for one can understand why the Supreme Court was unimpressed with the attempt to argue the validity of the Affordable Care Act on the basis of the Commerce Clause. In this decision the Court basically said the government cannot force citizens to participate in commerce, a position that comports with precedent. By the way, that fencing-off of the Commerce Clause suggests the broccoli debate is over … for now anyway.
The point I’d make about the Commerce Clause is that it was originally added to the Constitution as a means of tamping down on trade wars between the states. This may sound naïve, but to the best of my knowledge there’s nothing particularly “interstate” about sickness and healthcare, especially since health insurance is regulated primarily by the states. So this layperson’s sensibilities would argue that the Commerce Clause argument was a flatly disingenuous one, even if one supported the ACA as a whole.
Nov. 6 + 51 = repeal?
It appears that the majority decision left open – inadvertently or otherwise – the use of budget reconciliation to delete the ACA from the books. As we all now know, Chief Justice John Roberts and his four colleagues ditched the Commerce Clause argument in favor of a taxation argument, essentially stating that Congress has the authority to use its powers to tax to force citizens to enroll in a health plan or face a fine.
Another thing we all know is budget reconciliation is a tool used in both houses of Congress to pass legislation that affects the budget, something which taxes clearly do. The real point of interest here is that the Senate, like the House, needs only a simple majority – 51 votes, not 60 – to pass an ACA repeal bill based on budget reconciliation rules. Ergo, all the repeal effort requires is the very tiniest of majorities, a far more attainable goal than six of ten.
I’d love to take credit for having thought of this reconciliation idea first, but I can’t. My wife and I were having dinner when it came to me, which was apparently quite some time after the folks on Capitol Hill came up with it, as this report and others make clear.
One point I will add to those reports is that 23 Democrats (and independents who caucus with them) are either retiring or running for re-election in November, while the same can be said of only 10 Republicans. Given that the GOP currently holds 47 seats, a repeal bill could easily fly in the Senate next year using budget reconciliation.
Et tu device tax?
Precisely how this all affects device makers is tough to flesh out, because while the device tax is still the law of the land, it could be repealed by year’s end, or it could be offset by other tax issues that have to be dealt with by then.
Among the tax issues Congress has to take up before Jan. 1 are the tax cuts passed during the George W. Bush administration and sustained by the Obama administration, the bonus depreciation, and the research and experimentation credit. The 2.3% device tax could sidestep industry opposition if Congress and the White House find an offsetting measure somewhere in this panoply of expiring taxes.
Of course, if you can use budget reconciliation to delete the ACA, you could use it to dump the device tax, too, no?
It is hardly a curse for someone in my line of work to live in interesting times, but making sense of all the moving parts is tricky. Still, even someone like me can count to 51, a number that could reverse what nine black robes wouldn’t.