With the enactment of the Tax Cut and Jobs Act of 2017, which repealed the tax penalty for the individual health insurance mandate, many Americans are under the impression that this year they are out from under Obamacare’s mandate.
They are wrong—on several counts.
An Unpleasant Surprise
First, the repeal of the individual mandate tax penalty does not take effect until 2019. This year, therefore, the tax penalty is still the law of the land, and the IRS will enforce it.
The IRS will levy the penalties for the 2017 and 2018 tax years, and related reporting requirements for businesses and insurers will remain in force until repealed.
For the 2017 tax year, the IRS has also announced that it will reject tax returns that do not include evidence of coverage or a penalty payment. Unless one qualifies for one of the Obamacare exemptions, such as enrollment in a “sharing ministry” or a “hardship” exemption, the IRS can bite.
Second, the repeal of the tax penalty is not a repeal of the individual mandate provision itself. The reason: Congress is constrained by its own rules.
Congress enacted President Donald Trump’s historic tax reform bill under the terms and conditions of the congressional budget reconciliation process—the special process that Congress uses to align its tax and spending priorities with the annual congressional budget resolution.
This process has some crucial advantages and limitations.
The biggest limitation is that a “reconciliation” provision that amounts to legislating—changing law—must have a direct impact on revenue and spending categories.
While particular items are often a matter of dispute, the general rule is that a repeal of statutory language that is primarily regulatory—like Obamacare’s individual mandate—is routinely off-limits in the budget reconciliation process.
The biggest advantage, assuming Republicans maintain their majorities, is that enacting a bill through the budget reconciliation process insulates it from a Senate filibuster—the old, standard opposition tactic of talking a bill to death on the Senate floor. To break a filibuster requires 60 Senate votes to cut off debate.
In short, under conventional Senate rules, if a bill can’t muster 60 votes, it’s dead.
Thus, as happened last December, using the budget reconciliation process, Congress was able to pass and send to Trump the biggest and most significant tax reform package in decades, including an elimination of the mandate tax penalty, with a simple Senate Republican majority.
There was no other way to get that major tax reform. If Congress had resorted to the standard legislative process, the united, disciplined Democratic Senate opposition—“the Resistance”—would have killed the tax bill, and thus the tax cuts and the repeal of the individual mandate tax penalty, among many other provisions.
Members of Congress are going to have to go back, once again, and finish the job: Repeal Section 1501 of the Affordable Care Act of 2010.
The next, best opportunity to do it would be the Omnibus spending bill to enact appropriations for the remainder of 2018. The current spending billexpires on March 23.
If Congress can repeal the individual mandate penalty, and the statutory language, for this taxable year, they can also cancel the penalties for the 2017 taxable year. For 2017, the penalties amount to $695 per person, or 2.5 percent of household income, whichever is greater.
Repeal of the individual mandate will at least relieve anxiety for those, mostly lower income folks, who have been disproportionately paying the individual mandate penalty. Fifty-eight percent of those paying the penalty earn $50,000 or less annually.
Meanwhile, millions of unsubsidized middle class families are paying out big monthly premiums and crazy deductibles for the federally mandated insurance. This is not what they want or can afford, but, under Obamacare, it is what they must have—without even the benefit of individual tax relief for the purchase of individual health coverage.
The answer to this problem, as conservative analysts have argued, is to replace this failing regime of inflexible federal regulation with a new market based on real personal choice and competition, where Americans can select the plans they want at prices they wish to pay.
Repeal of the individual mandate language is a good, first step in the very long journey toward comprehensive health care reform—reform based on Americans’ right to choose their own coverage.
This piece originally appeared in The Daily Signal