When Is A Mandate NOT A Mandate?...When It Was Designed Never To Be Enforced...

I wrote to President Obama a couple weeks ago, advising him to consider trading a budget resolution and a debt-ceiling increase for a one-year delay in the individual mandate. I suggested there were both solid political reasons and substantive reasons for doing so.

He never got back to me. I mean, I understand; he's been a little busy...

Then last week, without acknowledging that the roll-out of new federal health exchange has been a multi-dimensional disaster, The White House released the news that there will be a six-week delay in the enforcement of the individual mandate. People will have until March 31, 2014, to apply for qualified health coverage before facing a potential penalty.

What penalty?...

I have to say, it has been three years since I read (parts of...well, the personally-relevant parts of) the legislation itself. So I was rather surprised to catch a rant by Lawrence O'Donnell, former Senate staffer, TV consultant (he helped make The West Wing seem like it could really happen), and now host of The Last Word on MSNBC, in which he shattered all the silliness surrounding the "delay Obamacare" shenanigans of the Tea Party and the feckless, follow-any-shiny-object fixation of the media on the roll-out, by pointing out that there really isn't a mandate in the law, except on paper...because the mandate was designed never to be enforced.

First, O'Donnell showed a portion of a White House press conference, in which an intrepid correspondent asked Press Secretary Jay Carney if the recent roll-out snafu would be severe enough to warrant a one-year delay in PPACA's individual mandate, which requires that all individuals either sign up for a health plan or pay a penalty.

Carney gave an answer that would make a Jesuit proud . In short words and simple sentences, Carney said essentially this: "The law is very clear. Individuals will not be subject to a penalty if they live in a state which has refused to participate in Medicaid expansion, as many states with republican governors have done, or if they live in an area which does not provide them with access to affordable health coverage."

The reporter asked for clarification: Might this be taken to mean that someone who can't buy health coverage because the marketplace website doesn't work be considered to live in a place which doesn't have access to affordable health coverage?

Carney repeated his answer.

In other words, yes: if the exchange website isn't working, nobody will be penalized.

But here is the real gem. The law takes great pains to enumerate the fines that might be levied over time upon individuals or employer groups who do not take the steps required by law. Much has been written and reported on that subject.

But the agency tasked with collecting those fines is the Internal Revenue Service. And here's the guidance the law gives to the IRS, from page 131 of PPACA:

"Section 5000 A Title 26- IRS Code Chapter 48- Maintenance of minimum essential coverage:
(A) Waiver of criminal penalties-
     In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
B) Limitation on liens and levies-
     The Secretary shall not-
          ( i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section , or (ii) levy on any such property with respect to such failure."

Okay, so, I'm not a lawyer, but I know how to read, and it sure seems to me that, written into the law, there is a "get out of jail free" card for anybody who might, for whatever reason, fail to comply with PPACA's mandate. And given that "taxpayer" is a term which can apply equally to an individual or a corporation (which, as I understand it, is now a person, too), it seems to me that the law pretty explicitly says that no one will ever be required to pay a fine for non-compliance with the PPACA mandate...ever.

So, when is a mandate not a mandate? When the law it's written into clearly and explicitly forbids the enforcement agency from ever collecting any fine, ot taking any other adverse action, against anyone who doesn't comply with the mandate. Ever.

I'm not sure how aware of this provision Our Friends In Government might want people to be of this little magic trick. I'm sure supporters of the law would rather not know that people can freely avoid signing up for a health plan, since there's no penalty for not doing so: that might affect enrollment.

And chances are opponents of the law won't want people to know about it. either. That would mean that some Republican lawmaker would have to take to the ramparts and insist that the law be changed to require the IRS to levy and collect those fines, liens and judgments...which, of course, would be tantamount to a Republican insisting that the government raise taxes.

But for now, I know. And if you've read this, you know. And we have friends. Let's educate them, shall we?...