NFIB Sebelius Dissent

17 Oct



changes so the shopper can compare benefits and prices.
But the comparison cannot be made in the way Congress
designed if the prices depend on the shopper’’s pre-existing
health conditions. The prices would vary from person to
person. So without community rating—-which prohibits
insurers from basing the price of insurance on pre-existing
conditions-—the exchanges cannot operate in the manner
Congress intended.

Employer-Responsibility Assessment

 The employer responsibility assessment provides an
incentive for employers with at least 50 employees to
provide their employees with health insurance options
that meet minimum criteria.  See 26 U. S. C. §4980H
(2006 ed., Supp. IV). Unlike the Individual Mandate,
the employer-responsibility assessment does not require
employers to provide an insurance option.  Instead, it re-
quires them to make a payment to the Federal Govern-
ment if they do not offer insurance to employees and if
insurance is bought on an exchange by an employee who
qualifies for the exchange’s federal subsidies.  See ibid.

 For two reasons, the employer-responsibility assessment
must be invalidated. First, the ACA makes a direct link
between the employer-responsibility assessment and the
exchanges. The financial assessment against employers
occurs only under certain conditions.  One of them is the
purchase of insurance by an employee on an exchange.
With no exchanges, there are no purchases on the ex-
changes; and with no purchases on the exchanges, there is
nothing to trigger the employer-responsibility assessment.

 Second, after the invalidation of burdens on individuals
(the Individual Mandate), insurers (the insurance regu-
lations and taxes), States (the Medicaid Expansion), the
Federal Government (the federal subsidies for exchanges
and for the Medicaid Expansion), and hospitals (the reduc-


tions in reimbursements), the preservation of the employer-
responsibility assessment would upset the ACA’s design
of “”shared responsibility.”” It would leave employers as the
only parties bearing any significant responsibility.  That
was not the congressional intent.

The Act’s Minor Provisions

  The next question is whether the invalidation of the
ACA’’s major provisions requires the Court to invalidate
the ACA’’s other provisions. It does.

 The ACA is over 900 pages long.  Its regulations include
requirements ranging from a break time and secluded
place at work for nursing mothers, see 29 U. S. C. §207(r)(1)
(2006 ed., Supp. IV), to displays of nutritional content
at chain restaurants, see 21 U. S. C. §343(q)(5)(H).
The Act raises billions of dollars in taxes and fees, includ-
ing exactions imposed on high-income taxpayers, see ACA
§§9015, 10906; HCERA §1402, medical devices, see 26
U. S. C. §4191 (2006 ed., Supp. IV), and tanning booths,
see §5000B. It spends government money on, among other
things, the study of how to spend less government money.
42 U. S. C. §1315a.  And it includes a number of provisions
that provide benefits to the State of a particular legislator.
For example, §10323, 124 Stat. 954, extends Medicare
coverage to individuals exposed to asbestos from a mine in
Libby, Montana. Another provision, §2006,   id., at 284,
increases Medicaid payments only in Louisiana.

  Such provisions validate the Senate Majority Leader’’s
statement, “ “‘‘I don’t know if there is a senator that doesn’t
have something in this bill that was important to them.
. . .  [And] if they don’’t have something in it important to
them, then it doesn’’t speak well of them.  That’’s what this
legislation is all about: It’’s the art of compromise.’'” ” Pear,
In Health Bill for Everyone, Provisions for a Few, N. Y.
Times, Jan. 4, 2010, p. A10 (quoting Sen. Reid).  Often, a

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