Refusing to Enforce the Law Is the Wrong Way to Defeat Obamacare

By Charles C. W. Cooke

Wednesday, February 15, 2017

Plus ça change, plus c’est la même chose. At Reason, Peter Suderman confirms that the IRS will continue its Obama-era policy of accepting tax returns that lack vital information about their filers’ compliance with Obamacare. As a result, Suderman concludes, it will remain easy for “individuals to go without coverage while avoiding the penalty.” Thus will the baton be passed sideways, from one haughty emperor to another.

Prima facie, the IRS has a strong case for its declaration. Contrary to initial reports, the move does not constitute a reversal of the agency’s policy but a continuation of the approach that it took during the Obama years. Per Suderman, the IRS was due this year to begin rejecting incomplete returns, but “reversed course on February 3.” As such, the status quo will obtain. What was good enough for Obama will be good enough for Trump, and the ACA will remain on the honor system.

In addition, there is a material difference between weakening a reporting requirement and obviating the mandate completely. As Suderman confirms, “taxpayers are still required to pay the mandate penalty, if applicable,” and — crucially — any liability incurred behind the scenes will continue to accrue. Regardless of what he might write on his return, a taxpayer who is audited and found to have lacked health insurance will be punished according to the terms of the law. Nullification this is not.

Indeed, when compared with the extraordinary latitude Obama claimed during his implementation of the ACA, one might argue that this barely registers on the scale. Time and time again, the previous administration ignored the clear text of the law in an attempt to limit its ill effects. As was argued repeatedly in these pages, that was not a legitimate use of executive power, but an extra-constitutional outrage that should have yielded far more opprobrium than it did. That we are only now hearing cries of “overreach” is irritating in the extreme.

Nevertheless, “Obama did it too” does not constitute a defense of Trump, and that the move fails to destroy the mandate in toto does not render it tolerable. As it did during Obama’s tenure, the IRS is announcing its intention to ignore the lawbreaking that it has been charged with rooting out. This is not quotidian “discretion,” which is inevitably “case by case,” but an attempt to subvert a statute. The penalty’s merits to one side, this should vex any conservative who is concerned by the executive’s increasing tendency toward the non-enforcement of law.

Would this policy fly in any other area? The Gun Control Act of 1968 prohibits felons, drug users, and the mentally ill from purchasing firearms. As a result, ATF form 4473 includes a series of questions designed to determine whether an applicant is disqualified from buying. If, at the scene of a purchase, an aspirant answers “yes” to any of those questions, the seller is required to halt the transaction. Were the ATF to decide that, henceforth, a buyer could submit his form without filling in those parts, it could offer all sorts of justifications in favor of its decision. It could contend, for example, that it was only altering the information-collecting process, not obviating the underlying law; that any felon, drug user, or mental patient caught with a gun was still liable to be punished; and that, given the number of guns being sold, it was simply not feasible for gun dealers to keep up with the paperwork. And, in a narrow sense, it would have a point. But so would those who argued that the move amounted to a blanket desire to decrease enforcement of the law.

Which, of course, is exactly what it would be — just as was the IRS’s approach under Obama, and just as it will be under Trump. It is a serious transgression. As in my hypothetical, if a statute is causing problems for the agency charged with enforcing it, the correct course of action is for Congress to change the statute. I happen to agree with the critics of Obamacare who argue that using the IRS to police health-insurance compliance is insane. What I cannot agree with, however, is that this accords the executive a license to shirk its constitutional law-enforcement responsibilities.

As it happens, one might argue that the IRS’s approach is worse under Trump than it was under Obama, both because the law is now old enough to be out of its “transition” period and because it looks as if the agency’s reversal was the product of an executive order. On January 20th of this year, Trump signed a missive instructing his cabinet departments to “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of [Obamacare], and prepare to afford the states more flexibility and control to create a more free and open health care market.” Can one doubt that the February 3rd decision was a reaction to this? Had the decision-makers at the IRS come back from a work retreat and concluded with a sigh that the mandate was unenforceable, the blame could be put squarely at the feet of Congress. But they didn’t. They read Trump’s words and canceled their plans for change.

This not a policy objection. I loathe the mandate and the statute to which it belongs — an intrusive, abusive, and hubristic nightmare that elevates the federal government way above its station and destroys the proper relationship between the citizen and the state. If it is repealed, I shall rejoice as if it were the Fourth of July. But the rule of law is yet more important still, and I consider a government that rewrites statutes on the fly to be a far bigger threat than a government that contrives ugly and unpopular programs. It is caprice, not stupidity, which serves as the most potent enemy of freedom, and for years now the IRS has been capricious in the extreme. Until such time as Congress amends its mistake, the hideous statute it passed will remain on the books and in force. For now, it must be respected — or we will soon enough have no law at all.