Obamacare Exchanges: You Can't Always Get What You Want

M2RB:  Rolling Stones live from Argentina

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometimes you just might find
You just might find
You get what you need

"Employers with fewer than 50 employees are exempt from new employer responsibility policies.  They don’t have to pay an assessment if their employees get tax credits through an Exchange."

- Lois, troll, 16 July 2012

Now, that they've passed it; Obama's signed it; and, Roberts' has used his legal diving rod, found a heretofore undiscovered tax in the Constitution, and blessed it, we (and the Democrats) are learning what is actually in it.  To their great dismay, I'm sure, the Feds now find themselves in this pickle:

The Feds can’t force the states to create exchanges. The Feds can come in and set up exchanges in the states that elect not to create them, but there is a problem. When Democrats wrote the legislation, they forgot to include a funding mechanism for Federal government-run exchanges. Further, the Federal subsidies, per statute, can only be used in state-run exchanges.

Employers with less than 50 employees are not subject to the employer mandate that requires them provide health insurance. In states without exchanges, employers with more than 50 employees are exempt from the mandate, as well.  Neither would have to pay the penalty where there is no state exchange. There goes some of the money that the Feds thought they would be generating.

If you are eligible for subsidies, but there is no exchange, you don’t have to pay the penalty.  There goes some more of the money that the Feds thought they would be generating.

If your employer doesn’t provide insurance and there is no exchange, I think that you are exempt from the penalty, too, although this might only apply if you fall below a certain income level (IIRC, it was around $88,000 for a family of 4).

It appears that, with the exception of the insurance company mandates, Obamacare implementation could be greatly impeded if states opt out of the Medicaid expansion and refuse to create exchanges.  Also, I just thought of this and I don't remember the case, but there was a Rehnquist Court unanimous decision dealing with regulation that held the government couldn't regulate a company into bankruptcy.  Further, the Court held that businesses were entitled to a reasonable profit and government regulations could not be so severe as to deprive owners of same since that would be an unlawful taking, i.e. a violation of the Takings Clause.

If a state does not have an exchange, employers are not required to provide insurance, and Medicaid is not expanded, the insurance mandates could trigger the dread "death spiral."  The insurance companies might be able to argue that they should be exempt from the mandates in those states without the "captive audience" of subsidised customers, who can only purchase insurance on the exchange.Lastly, under the Obama Doctrine — Presidents simply do not have to enforce laws that they, themselves, believe to be unconstitutional, cost-ineffective, “unfair,” contrary to our “values,” not politically expedient, etc. — a future POTUS can simply issue an Executive Order directing his Treasury Secretary not to collect the tax. :-)

Bad precedents are bad for a reason…and it has nothing to do with skin colour. It’s too bad so many people refuse to listen.

 So, let's just review the pertinent points on the exchanges and credits:

• If the state opts not to create an exchange, then employers with over 50 employers don't have to pay an assessment either. Nor do individuals, who fail to carry insurance have to pay the tax. Nor, can anyone get subsidies.

• Obamacare defines a health insurance exchange in Section 1311 as a “governmental agency or nonprofit entity that is ESTABLISHED BY A STATE."

• Section 1321 allows the Feds to create an exchange where states refuse to do so.

• Section 1401 of Obamacare describes the federal insurance subsidy programme and who is eligible for such a subsidy.

• Section 1401, SPECIFICALLY, states that ONLY those who are “enrolled … through an Exchange ESTABLISHED BY THE STATE UNDER 1311" are eligible for federal insurance subsidies.

• If there is no exchange upon which an employer could use subsidies, the employer doesn't get any credits.

• No subsidies? No mandates.  No assessments.  No credits.  No penalties.  No fines.  No taxes.

• The Federal exchange cannot offer subsidies, by law. 

And, you can look and see where your state is on the exchange issue as of 11 July 2012 here:


15 Established State Exchange

1 Planning for Partnership Exchange

18 Studying Options

11 No Significant Activity

6 Decision Not to Create State Exchange  

 You Can't Always Get What You Want - Rolling Stones

I saw her today at the reception
A glass of wine in her hand
I knew she would meet her connection
At her feet was a footloose man

No, you can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometime you find
You get what you need

I saw her today at the reception
A glass of wine in her hand
I knew she was gonna meet her connection
At her feet was a footloose man

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometimes well you might find
You get what you need

And I went down to the demonstration
To get my fair share of abuse
Singing, "We're gonna vent our frustration
If we don't we're gonna blow a 50-amp fuse"

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometimes well you just might find
You get what you need

I went down to the Chelsea drugstore
To get your prescription filled
I was standing in line with Mr. Jimmy
And man, did he look pretty ill
We decided that we would have a soda
My favorite flavor, cherry red
I sung my song to Mr. Jimmy
Yeah, and he said one word to me, and that was "dead"
I said to him

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometimes you just might find
You get what you need

You get what you need--yeah, oh baby
I saw her today at the reception
In her glass was a bleeding man
She was practiced at the art of deception
Well I could tell by her blood-stained hands

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometimes you just might find
You just might find
You get what you need

You can't always get what you want
You can't always get what you want
You can't always get what you want
But if you try sometimes you just might find
You just might find
You get what you need