Is There A Potential For Collateral Damage If Obamacare Is Unconstitutional?


The term, “Collateral Damage,” is a military term.  It refers to death and destruction suffered by innocent by-standers when the military is forced to use deadly force.

In politics it is called, “The Law of Unintended Consequences.”  It refers to the phenomenon that happens when congress passes a new law to benefit one class of people, another class of people get hurt by accident.

Last week I was forced to deal with the question, “What if the entire Patient’s Protection and Affordable Care Act is declared unconstitutional?”  That is a very good question.  Last month President Obama’s signature legislation was reviewed by the United States Supreme Court.  Because of a legal technicality, there is a chance that the entire law will be thrown out in order to protect the American public from a power grab by congress and the insurance industry.

THE  LEGAL PROBLEMS

Section 5000A of the PPACA requires all Americans to purchase a government approved “Essential Benefits” health insurance policy or pay a penalty that is calculated along with their annual income taxes.

Many Americans, myself included, feel that this is an over-reach of power by the U.S. Congress.  Never, in my life-time, has the U.S. Congress mandated that every citizen spend his money to purchase a specific product.  Although I think that the purchase of health insurance is a wise move, I am against the government telling me what I have to buy.

Others feel just as strongly that Obamacare will not work adequately without the Individual Mandate to require that younger and healthier people participate in the national health insurance program.

Making things worse, in the rush to get Obamacare pushed through the Senate, the clerks left out a severability clause from the final legislation.   A severability clause allows the courts to review the law and pick out pieces of the legislation to declare unconstitutional while leaving the rest of the law in tact.

Since the PPACA does not have a severability clause, there is a chance that if the Supreme Court finds that the “Individual Mandate” in the law is a congressional over-reach, they could declare the entire law unconstitutional.

WHAT IT COULD MEAN TO YOU

Nothing is certain at this point in time.  The entire nation will have to wait until later this summer to find out what the Supreme Court has decided.  If they have decided that the Individual Mandate is within the scope of congress’ authority, nothing will happen.

The court has the ability to sever the Individual Mandate from the rest of the law and declare it unconstitutional and void while keeping the rest of the law in force.

If the entire law is declared unconstitutional, it means that everything will revert back to the condition it was before March 23, 2010.  Many of the better provisions of the law would go away along with the bad elements.  I am certain that the congress will take steps to rewrite many of the more universally popular laws but there are no guarantees.

If the entire law is thrown out, that means that the guaranteed issue of policies for children, regardless of their health, will stop.  It also means that the “free” preventive exams and tests will be done away.

Another benefit of Obamacare that will go away is the annual physical for people on Medicare.  If the entire PPACA is declared unconstitutional, Medicare rules would revert back to those that were in effect in 2009.  At that time, the only wellness exam that Medicare would pay for was the one-time “Welcome to Medicare” exam.

WHAT YOU CAN DO

If you get the feeling that the Supreme Court may declare the entire law unconstitutional, there is something that you should do, for your own protection, before the decision is made public in late June or early July.

  • If you have private health insurance that qualifies for the “free” preventive health exams and tests, schedule your for May or June.  Right now, your health insurance company will probably pay the full price of your mammogram, lab work or colonoscopy.  If the PPACA goes away this summer, those costs may be subject to your plan’s deductible again.
  • If you are on Medicare, schedule your wellness exam for May or June.  The annual Medicare wellness exam is part of the PPACA.  If the entire PPACA is declared unconstitutional, the annual Medicare wellness exam will go away with it.  Right now Medicare will pay for your annual “Preventive” check-up.  If you wait until later this year, there is a chance that Medicare will not.

Tim Barnes, CLU is dually licensed as an Insurance Agent and Life & Health Insurance Counselor.  Use the contact form on the right to ask your insurance related questions.  Don’t forget to include your state as laws differ from state to state.

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