We learned this week, Iowa will soon have zero healthcare providers on the Obamacare exchange. Yes, zero.
As we watch Republicans struggle to repeal Obamacare, the house bill making its way to the Senate, we need to keep in mind we’re far from repeal. This brings me back to the news about Iowa.
As an attorney, hearing that Iowa will soon have no insurers on the Obamacare exchange, started me thinking about how this fact can be used by conservatives to take another stab at challenging the constitutionality of Obamacare. While most conservatives bitch and moan about an activist court system, I prefer to take advantage of this fact and work to have the courts make favorable rulings on our behalf.
Obamacare requires every American to purchase health insurance if he or she doesn’t get coverage through an employer. This insurance is required to be made on the Federal or state healthcare exchanges. If a state like Iowa established its own exchange, its citizens cannot use the federal exchange. Failure to purchase health insurance subjects an individual to a financial penalty. But Iowa will soon have no insurers on their state exchange.
How can it be constitutional for a law to require a citizen to take an action which is impossible for them to do? Here’s a hint. It’s not constitutional.
In order to be constitutional, a law must pass the vagueness doctrine. The vagueness doctrine requires laws to specifically indicate what actions are forbidden. If a law is unclear, the law will be held as unconstitutional because it is impossible for a citizen to know if he or she is complying with the law. In short, if it is impossible for a citizen to comply with the law, that law will be held unconstitutional.
The vagueness doctrine is most often encountered in the criminal law context. But, it is applicable to Obamacare. After all, while Obamacare is not vague, it does create an analogous situation where it is impossible for a citizen to follow the law. Just as it is impossible for a citizen to follow a law if it is written in a vague manner that it does not clearly indicate the prohibited action, it is impossible for a person to purchase insurance when none is made available.
So, while others shout in anger about Iowa losing its only healthcare provider, I am sitting behind my microphone grinning with unending glee
NOTE: I am an attorney who is licensed to practice law in Ohio, and Michigan. I do know a legal colleague who practices in Illinois and Iowa. If you have a legal issue in any one of those states, email me.