Health Care Mandate: End Run Around a Two-thirds Tax Vote?

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Gov. Gavin Newsom wants to create health care subsidies by pushing a mandate requiring those who don’t carry health care insurance to pay a fee. Or is it a tax? The distinction matters because Newsom is trying to accomplish his goal of expanding health care with majority vote bills. A tax requires a two-thirds vote in both houses of the legislature.

The day following Governor Newsom’s inauguration I asked on this site, did Newsom announce his first tax increase proposal when his team declared it would seek a health care mandate based on the Affordable Care Act model of fining those who don’t participate? I pointed out that the mandate in the Affordable Care Act “was ruled a tax when U.S. Chief Justice John Roberts and the Supreme Court majority ruled that Obamacare’s mandate provision came under Congress’s taxing powers.”

This week, Newsom used a forum with small business owners to declare that a fiscal burden would be lifted from their shoulders if a universal health care plan is put in place. The first step in his health care reform toward some form of universal health care—he says, eventually single payer health care–is a mandate to help subsidize possibly millions of Californians who don’t have health care.

If the bills pass with a majority vote they are ripe for a legal challenge. On its surface this is not a federal issue and the Supreme Court decision might not come into play. Still, it is hard to ignore the Supreme Court ruling that the only way such health care mandates work is because of Congress’s taxing power. Chief Justice Roberts wrote the majority opinion for the court and stated: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Now here’s something delicious to contemplate. Newsom hopes that California values influence and even change federal policy. Note the 50 lawsuits California has filed against the federal government since the Trump Administration took over. If that’s the case in this situation, could Roberts, the swing vote in the Affordable Care Act decision, be convinced to change his mind? If so, Obamacare would crumble.

In California, challenges to the two-thirds vote continue with legislation in the woks to lower the two-thirds requirements for some local tax and bond issues. Newsom’s effort can be seen as an end run around the two-thirds vote for taxes.

What will California judges think when considering how the U.S. Supreme Court handled the tax question and California’s constitutional requirement of a two-thirds vote for tax increases?

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