19 votes

42 USC § 18115 - Freedom not to participate in Federal health insurance programs

http://thefederalist.com/wp-content/uploads/2013/12/optout-998x724.png

Federal law says you CAN opt out of Obamacare and CAN NOT be penalized

Ever heard of a federal law 42 USC § 18115: Freedom Not to Participate in Federal Health Insurance Programs?

I haven’t either.

But thanks to FOTM reader Joseph, now we all do!

This is how Cornell University Law School’s website describes 42 USC § 18115:

No individual, company, business, nonprofit entity, or health insurance issuer offering group or individual health insurance coverage shall be required to participate in any Federal health insurance program created under this Act(or any amendments made by this Act), or in any Federal health insurance program expanded by this Act (or any such amendments), and there shall be no penalty or fine imposed upon any such issuer for choosing not to participate in such programs.

The website further explains that the Act referred to in 42 USC § 18115 is Obamacare:

This Act, referred to in text, is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119, known as the Patient Protection and Affordable Care Act. For complete classification of this Act to the Code, see Short Title note set out under section 18001 of this title and Tables.

42 USC § 18115 refers to:

Title 42 – The Public Health and Welfare
Chapter 157 – Quality, Affordable Health Care For All Americans
Subchapter 6 – Miscellaneous Provisions
Section 18115 - Freedom Not to Participate in Federal Health Insurance Programs

You can see it for yourself by going on the U.S. House of Representatives Office of Law Revision Counsel’s website for United States Code.

Read more at http://www.liveleak.com/view?i=d18_1389344281#5PE6Hao7jxR5lV...

In other words, what we’ve been told about Obamacare — that every adult American must enroll in a healthcare plan or pay a penalty — is simply not true.

According to federal law 42 USC § 18115:

No one is required to participate in Obamacare.
You can’t be fined or penalized if you decline to participate in Obamacare.

None other than Democrat Congresswoman Debbie Wasserman Schultz (Florida) has confirmed this at an April 5, 2010, town hall meeting in Fort Lauderdale,

An attendee asked, “Congresswoman, who gave you the right or the authority to determine whether or not I have to purchase health care?”

Wasserman Schultz replied: “We actually have not required in this law that you carry health insurance. Let me explain what we did: What we did is that, just like when you’re treated, that we categorize you differently in terms of your tax return when you’re married versus single, just like we categorize you differently when you are a homeowner versus someone who doesn’t own a home, just like we categorize you differently when you have children versus not having children — what we are doing is you will be in a different tax status if you carry insurance versus not carrying health insurance. So you can feel free to choose not to carry health insurance. That’s just going to be reflected in the tax category that you’re in on your tax return. But there is no requirement in this law that you must carry health insurance.“

But what did Wasserman Schultz mean by if you don’t carry health insurance it’s “going to be reflected in the tax category that you’re in on your tax return”?

Answer: She’s referring to an IRS code 26 USC § 5000A: Requirement to Maintain Minimum Essential Coverage.

42 USC § 18115 directly contradicts another federal law, the IRS’s 26 USC § 5000A: Requirement to Maintain Minimum Essential Coverage, which says:

An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.

26 USC § 5000A further states that if “an applicable individual” doesn’t obtain “minimum essential [health] coverage,” he or she “shall be liable” to pay a monthly “penalty” in either a flat dollar amount or as a percentage of one’s income (see here).

That’s how the deceitful federal government gets around 42 USC § 18115′s prohibition against penalizing Americans for not obtaining healthcare coverage — by calling it a “tax” and siccing the IRS on us.
Bottom line:

There is enough contradiction between two federal laws — 42 USC § 18115 vs. 26 USC § 5000A — to keep an army of lawyers busy and tie up the courts in litigation and appeals for years.
http://fellowshipoftheminds.com/2014/01/08/federal-law-says-...
**************************************
Page 8160
TITLE 42—THE PUBLIC HEALTH AND WELFARE
§ 18115
§ 18115. Freedom not to participate in Federal
health insurance programs
No individual, company, business, nonprofit
entity, or health insurance issuer offering group
or individual health insurance coverage shall be
required to participate in any Federal health in-
surance program created under this Act (or any
amendments made by this Act), or in any Fed-
eral health insurance program expanded by this
Act (or any such amendments), and there shall
be no penalty or fine imposed upon any such is-
suer for choosing not to participate in such pro-
grams.
(Pub. L. 111–148, title I, § 1555, Mar. 23, 2010, 124
Stat. 260.)
REFERENCES IN TEXT
This Act, referred to in text, is Pub. L. 111–148, Mar.
23, 2010, 124 Stat. 119, known as the Patient Protection
and Affordable Care Act. For complete classification of
this Act to the Code, see Short Title note set out under
section 18001 of this title and Tables.
http://docs.uscode.justia.com/2010/title42/USCODE-2010-title...

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Judicial interpretation of this section

Judge Snow of Arizona interprets this section (42 USC 18115) in a manner that makes it consistent with the section of the IRS code (26 USC 5000A). See his opinion from December of 2012. I think most courts would probably follow Judge Snow's view.

Law is what government says

Law is what government says it is when they say it. Law is force. Law is what people think it is.

Written law is quite irrelevant in this country. The perceptions of the people around you and especially those with enforcement power define what the law is. Only kooks read the written law. Everyone else, including judges, just know what the law is.

This reads more like...

more protections for issuers of insurance policies than for us slaves.

I guess I'm not alone

big bump.

big bump.

Christians should not be warmongers! http://www.lewrockwell.com/vance/vance87.html

I believe the Supreme Court says it's a tax, not a penalty

The Obama Administration first of all argued that the people would have to pay a penalty if they did not buy the appropriate insurance. Why? Because the bill originated in the Senate and all taxing bills must originate in the House of Representatives. They insisted, repeatedly, that it was a penalty, not a tax.

Two or three years after enactment, a court case came the the Supreme Court which argued that it is unconstitutional to penalize people for not buying a product. The Obama Administration argued that it wasn't a penalty, it was a tax! Why? Because the Federal government has the right to lay taxes against individuals for any reason it wishes.

The Supreme Court agreed with that argument.

This was the famous case inwhich Justice Roberts (I believe) was supposedly visibly upset at casting the deciding vote and announcing the decision. There was speculation that he was coerced.

It "originated in the House".

It "originated in the House".

As I understand it, they took the (VERY different) house bill and amended it - by stripping out every bit of it and inserting the entire text of the Senate bill. When it was finally passed it had the house bill designation and the Senate bill text.

I hear there is a suit working its way to the Supreme Court, questioning whether such a process passes constitutional muster, since it moots (and makes a mockery of) the requirement that tax bills originate in the House.

IMHO the obvious decision would be that stripping and replacing the entire guts of a House bill in the Senate doesn't pass constitutional muster.

Not so obvious, but IMHO also correct, would be a declaration that merging a tax provision from a bill originated in the Senate into a bill originated in the House, or adding a tax provision de novo in the Senate to a House bill, should also be unconstitutional. IMHO the only consistent way to avoid end-runs around the constitutional prohibition is for the language creating a tax to originate in the House, with the Senate allowed only to tweak its terms, not to create it from scratch.

= = = =
"Obama’s Economists: ‘Stimulus’ Has Cost $278,000 per Job."

That means: For each job "created or saved" about five were destroyed.

Thanks for the clarifications

I remember distinctly that the Obama Administration was adamant that it was not a tax. Perhaps it was for other reasons (such as a pledge that the ACA would not increase taxes?), but they were just as adamant that it WAS a tax when tested in the Supreme Court.

They appear to be flagrantly playing whichever contradictory argument will win at the moment...a strategy that should have gotten them laughed off the Hill, or at least exposed in the the MSM.

I 'opted out' 1-2-3! You can too. It's easy!!

Forget the fine, forget repeal, forget the petition! It's all too hard and it relies on others to do something for you. Just 'vote with your feet' and undermine the whole rotten mess WITHOUT leaving yourselves medically exposed. Do what I did and sign up for www.HealthShareLiberty.com.

Choose any doctor or hospital in the Country. $500 out of pocket, not $1000 - $10,000! Inexpensive monthly cost that is consistently low year over year since 1990. A lot more too. Check it out. Give the ACA a kick in the pants, but don't leave yourself hanging out there exposed

I'm not signing anything.

I'm not signing anything. They cannot come after someone for not paying the penalty. They do not have that written into law. Let them try to collect it, after I kick the bucket.

What will happen, is, like Chris Christie and hearing about a 91 year old woman dying as a result of his top aid and his administration, you will hear about it, and it will be as disgusting as what Chris Christie has done under his lack of leadership, that all the people that just got dumped off the roles of healthcare because of Obamacare, and they got the letters booting them.....well people are going to start dropping like flies. People will start to die and they won't have health insurance. They will rack up bills. We haven't heard any examples of this yet, but there will be soon.

When people start dying because of Obamacare, and you see proof for yourself, even the dummies start to hear about it, and this will be long before Hillary comes out and tries to round up all the gays and loose stragglers, women rights, immigrants, and all the rest that she could really care less about ....so within 3 months you will hear about documented cases of people that had health insurance but now don't and what that caused, including no access to hospital, or a hospital denying care and the person kicking the bucket.

But hey they will bailout the insurance industry, but not those saddled and extorted by the policies allowed by law, as our government bows to their masters.

The game in America seems to be to peg it's citizens with debt and destruction and say hey, live the American dream.

And party loyalists continue to go along with it......like Hitler loyalists.

Be Your Own Media!!!

It's even easier than that.

Two simple ways to not participate (not the same as "opting out") AND not pay any tax or penalty for not participating.

#1 - the "penalty" is a surtax on the income tax. If you aren't liable for the so-called "income tax" then you aren't liable for the surtax either. In fact, the surtax is and can only be assessed by filing a 1040 or variant which is only filed by people who are liable for and owe the so-called "income tax."

If you aren't filing 1040s becuase you aren't liable for Subtitle A "Income Taxes" then you can't be penalized for not purchasing "minimum coverage" from a health insurance provider.

#2 - if you are stuck on stupid, and are still filing 1040s even though you aren't required to, (or if you are required to) all you need to do is pay a utility bill late. Simply don't pay on time one month, wait for the disconnect notice in the mail, then pay the bill.

Anyone who has received a disconnect notice from a utility (I think phone, internet, and cable service counts, but check on that) now has proof of "hardship" and not only doesn't have to prove they have "minimum health insurance coverage" but they also don't have to apply for newly expanded medicare/caid as a condition of being "exempt" from the "penalty." You don't have to actually go through the disconnect procedure, just receive the notice.

You'll need a disconnect notice at least once in the last 12 months for each year you want to not pay the penalty.

Thats an interesting

Thats an interesting loophole...

To climb the mountain, you must believe you can.

Didnt the supreme court rule

Didnt the supreme court rule it a tax though?

To climb the mountain, you must believe you can.

Yep. You get taxed for not buying health insurance.

Yes, they did rule it's a tax. You aren't FORCED to buy health insurance. You're just taxed more if you don't. B-b

And by doing this they've put the final stake in the heart of Bailey v. Drexel Furniture Co.. That is the historic decision striking the use of tax penalties to implement public policy, when a law to mandate or forbid the same behavior and imposing the equivalent penalty as a fine is beyond the legislative branch's constitutional authorization.

"Drexel Furniture" has been in a coma ever since the National Firearms Act of 1934 (NFA) imposed a (then-draconian) $200 tax on transfers of things like machine guns, "silencers" (mufflers), cane-guns, wallet guns, etc. (and gave the BATF the excuse to administer the tax the way they did on prohibition-era moonshiners, or at WACO). But this decision seems to decapitate the patient and cremate his remains.

You are expected to buy health insurance meeting certain government standards. You are "taxed" if you don't. How can there be any clearer case of using the tax law solely as a fine that would be unconstitutional if it were CALLED a fine? How is it any different from "taxing child labor", which was struck down in Drexel Furniture?

= = = =
"Obama’s Economists: ‘Stimulus’ Has Cost $278,000 per Job."

That means: For each job "created or saved" about five were destroyed.

Read it again ...

... because as far as a penalty is concerned, it seems to only apply to the issuer (insurance company).

"... and there shall be no penalty or fine imposed upon any such issuer for choosing not to participate in such programs."

The first part is fuzzy language, which is how many laws are written.

"No individual, company, business, nonprofit entity, or health insurance issuer offering group or individual health insurance coverage shall be required to participate in any Federal health insurance program created under this Act ..."

Is it saying that an individual does not have BUY insurance, or is it saying that an individual WHO OFFERS INSURANCE does not have to participate?

Fuzzy language so that only some dude in a black dress sitting up high on an elevated desk in a room with a gold-fringed flag behind him will make that call.

Congress didn't read it, and they CERTAINLY didn't write it, so why should they care?

See below.

See below.

can somebody analyze and

can somebody analyze and prepare a synopsis, an analysis of the observation?

Engage in Secure Exchange

It doesn't apply to citizens.

It doesn't apply to citizens. Its says the insurer isn't required.

"and there shall be no penalty or fine imposed upon any such issuer for choosing not to participate in such programs."

The language is fairly clear. No penalty on any ISSUER.

We can't be forced to buy the insurance, but individuals can be penalized or fined if they don't because the exemption from the penalty or fine is only for the insurance companies (issuers) who refuse to participate.

"Bend over and grab your ankles" should be etched in stone at the entrance to every government building and every government office.

Good point ...

Which establishes even more distinction between two codes ... a code applicable to insurers and a code applicable to taxpayers.

I should have payed more attention to the verbiage before going on a citizenship diatribe. Shame on me!

What is so complicated about it?

Does 42 USC § 18115 apply to any citizenship status other than a United States citizen? Does it apply to an English, Chinese, Japanese, or Mexican citizen? Does it apply to any aliens from outer space?

Does 26 USC § 5000A apply to any citizenship status operating outside of any state which is a member of the United States or United States territory other than a United States citizen or national? Does it apply to anyone who does not earn income?

It seems to me ... if you are operating as a United States citizen or earning income derived from a privileged federal activity such as realizing a gain using private credit denominated in units of dollars which only has value because it is backed by the full faith and credit of the United States, etc. ... then you may be liable for a health care tax.

Does not the precious Constitution delegate to the federal political subdivision an unlimited power to tax qualified only by the manner or means in which direct or indirect taxes may be imposed? I am starting to think some of those who claim to believe in the Constitution and the delegated unlimited power to tax activities derived from a federal privilege don't believe in the document.

So you believe in the strong central government established by the Constitution and its unlimited power to tax? Yes, yes, I support the Constitution ...

And you believe it is up to a Congress comprised of two houses outlined in the Constitution to enact tax legislation which must be signed by a President before becoming law? Yes, yes, I support all that ...

And this President and members of Congress ought to be democratically elected by majorities of voters? Yes, yes, they ought to be ...

So what is the problem? A democratically elected Congress and President enacted a new tax ...

To me it sounds like a bunch of people who want all the privileges of United States citizenship, its benefits, its protections of law, a right to derive a private gain using privileged private credit denominated in dollars possessing value only because they are backed up by the full faith and credit of the United States ... but either do not want to pay for the administrative overhead of such a system or who think they can partake of benefits and exempt themselves from liabilities.

The point the writers of the above articles are making

Is that the law contradicts itself. Clearly it says you cannot be compelled AND it says if you don't comply you will be penalized.

Paying a tax to enjoy the benefits of citizenship as you say is fine should one choose to do so.

But if the writers of the law cannot write the law without it contradicting itself, it begs to be challenged.

Perhaps you could clarify the contradiction ...

One code is essentially stating there is no civil penalty for failing to obtain health insurance.

The tax code is along the lines of income earning taxpayers who do not maintain health insurance will be taxed differently than taxpayers who do maintain health care insurance.

So the question is ... does everyone potentially subject to 42 USC § 18115 earn taxable income? Of course not. If the answer to that question is no then one who does not earn taxable income will not be penalized for not maintaining health insurance. However, one who does earn taxable income will be taxed accordingly which is a tax matter completely separate of any civil penalties one could be liable for under 42 USC § 18115.

They are not two separate and distinct codes applicable to different circumstances?

This is directly related

to HIPAA.

http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers...

A while back, there was a posted video of Congressman Barton from Texas questioning the woman from CMS concerning the statement hidden in the source code of Obamacare, that there is "no reasonable expectation of privacy." The link to the exchange is below.

This violates HIPAA. What we have is one law (Obamacare) violating another law (HIPAA).

http://www.youtube.com/watch?v=uOk0vOup4yA

When laws overlap other laws, might we want to consider there are too many laws?

Debbie Wasserman Schultz

http://static.politifact.com.s3.amazonaws.com/politifact%2Fmugs%2F27560_6444958138_7609_n.jpg
"We actually have not required in this law that you carry health insurance."
http://static.politifact.com.s3.amazonaws.com/rulings%2Ftom-mostlyfalse.gif
Debbie Wasserman Schultz on Monday, April 5th, 2010 in a town hall in Fort Lauderdale, Fla.
http://www.politifact.com/florida/statements/2010/apr/22/deb...