One week has passed since the Supreme Court determined that a slightly curtailed Affordable Care Act (ACA) passed constitutional muster. So, how much did the Court’s decision actually settle?
NRF remains determined to repeal or substantially overhaul the ACA. To paraphrase Chief Justice John Roberts, elections do matter. But, just as the judicial process failed to deliver the result we wanted, we cannot afford to rely on the uncertain outcome of the November elections. We must act now to help retailers provide affordable coverage for their employees and their families.
To help focus our grassroots and political campaign, we established a special website at www.retailmeansjobs.com/healthcare. NRF is also deeply embedded in the regulatory process on crucial retail industry issues—managing full and part-time workers (and the hardship of the 30-hour definition of full-time) with the retail industry’s uniquely variable workforce. We started this process early—not because we like the law but rather because our members will have to live with the consequences of implementation.
The Supreme Court decision is underlined by the respect of the Judicial Branch for the Legislative and Executive Branches of government. Still, the logic of the majority opinion stretches to reach that result. Under the Roberts opinion for the majority, the individual mandate penalty survived under Congress’ taxation power. Congress can encourage or discourage activities through the tax code. But, Roberts also said that the penalty was not a tax for purposes of the anti-injunction act. It is a tax that is not a tax until it really is a tax again. Quite taxing logic…..
Our biggest take away from the majority decision from Chief Justice Roberts and his colleagues is not the circular tax, but rather from some interesting dicta. Roberts wrote:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect people from the consequences of their political choices.” (p. 6, emphasis added)
We must take the Chief Justice at his word. NRF intends to work the political and regulatory process to overturn, overhaul or mitigate the damage imposed by the ACA. It is vital that regardless the outcome, we all remind policymakers that keeping the Affordable Care Act, in fact, affordable is the crucial goal. We stand ready to assist and advise.