Constitutional questions about Obama’s new health proposals

2 overlooked aspects of the President’s proposal:

      1.  The missing provision:  

In Title 26, Section 5000A, strike “penalty” in each place that it appears and replace it each time with “tax.”

This one sentence would all-but guarantee that the individual mandate was constitutional as an exercise of the taxing power.

      2.  The dangerous provision (at 40):

Apply a single blended matching rate to Medicaid and CHIP starting in 2017. Under current law, States face a patchwork of different Federal payment contributions for individuals eligible for Medicaid and CHIP. Specifically, State Medicaid expenditures are generally matched by the Federal Government using the Federal medical assistance percentage (FMAP); CHIP expenditures are matched with enhanced FMAP (eFMAP); and the Affordable Care Act provides increased match for newly-eligible individuals and certain childless adults beginning in 2014. Beginning in 2017 this proposal would replace these complicated formulas with a single matching rate specific to each State that automatically increases if a recession forces enrollment and State costs to rise. This proposal is projected to save $14.9 billion over 10 years.

This change would open a new, serious line of attack on the Medicaid anti-commandeering cases against the ACA (see prior TIE coverage at par. 2).  The Medicaid expansion claims haven’t received nearly the same press as the individual mandate, but should be taken seriously. Really, is anyone watching the store on this? If I was forced to choose, I’d protect Medicaid expansion over the IM.

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