Relevant and even prescient commentary on news, politics and the economy.

Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes. Roberts does, too! (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling. Or something.)

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.'”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, yesterday

Late Tuesday afternoon, after I’d read two or three early reports on the argument at the Supreme Court that morning in the Hobby Lobby and Conestoga Wood cases, I posted a piece here titled:

“My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.”

That post harked back to one I’d posted the day before about what to look for in the upcoming argument.  What to look for, I said? Mainly whether “the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.”  I predicted that it would–that the Court “will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.” I wrote:

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My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.

When [U.S. Solicitor General Donald] Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights.  Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?”  Verrilli said no, but Alito had made his point.

Argument recap: One hearing, two dramas, Lyle Denniston , SCOTUSblog, reporting on this morning’s Supreme court argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius

That paragraph was one of two in Denniston’s recap that dismayed me, albeit only momentarily. Unquestionably, a threshold issue in these cases is whether or not the proverbial corporate veil–a shorthand legal term that conveys that the very purpose of the state-created corporate structure is a severance of the rights and liabilities of corporations from those of its shareholders–can be “pierced” in order to allow the shareholders in these two closely-held corporations to confer to the corporation their personal legal right of religious exercise under the First Amendment or under a federal statute called the Religious Freedom Restoration Act, the latter which expressly uses the term “person” to identify its beneficiaries.  I addressed this in detail in this post here yesterday.

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The OTHER big ACA case being argued today (albeit not at the Supreme Court) concerns the statute’s alleged Disestablishment Clause

Obamacare faces two separate court challenges on Tuesday, but only one could deliver a major knockout blow to the law.

The case getting the most attention is tomorrow’s Supreme Court challenge to the health care law’s requirement for employers to provide birth control to their workers. At the same time Tuesday morning, the District of Columbia’s Circuit Court of Appeals will consider whether Obamacare allows premium subsidies to flow through federal-run health insurance exchanges. That case has been called “the greatest existential threat” to the survival of the health care law by one of Obamacare’s staunchest supporters.

The contraception case is big, but another challenge could really hurt Obamacare, Jason Millman, Wonkblog, Washington Post, yesterday

Ah. And to think that so many people think the big Obamacare cases to be argued in a federal court today are the contraceptive-mandate ones.  But not regular AB readers! That’s because y’all read this post of mine and then this one.  And you remember those posts!

But to refresh your memories about the details, I’ll quote Millman further:

The law’s opponents argue that Congress never authorized subsidies in federal-run exchanges, and they claim this was done on purpose. They say Congress wanted to incentivize states to run their own exchanges, an option that only 14 states and the District of Columbia chose in 2014.

The law’s supporters argue that the law doesn’t differentiate between federal-run and state-run exchanges, so people should be able to receive subsidies no matter who’s administering the insurance marketplaces. Further, they say the broad purpose of the law is to expand access to affordable insurance regardless of who runs the exchange.

There are four pending cases in federal court challenging the subsidies. In Tuesday’s case, Halbig v. Sebelius, a lower federal court in January upheld the IRS rule allowing subsidies in federal-run exchanges.

“The Court finds that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges,” District Court Judge Paul Friedman wrote in his decision.

Well, of course, Judge Friedman found that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges. Sure, he’s a Reagan appointee, but I published the first of my two posts deconstructing The Antidisestablishmentarianism Theory of Obamacare Illegality seven weeks before he issued his opinion agreeing that the ACA does not in fact have a disestablishment clause.  And since he’s undoubtedly an avid AB reader, he didn’t even have to read the government’s brief deconstructing the disestablishment-clause theory.  Well, maybe he did anyway, but he already knew that that clause in the ACA did not really disestablish the statute’s federal tax credits in 36 states.

So he wrote:

Looking only at the language of 26 U.S.C. § 36B(b)-(c), isolated from the cross-referenced text of 42 U.S.C. § 18031, 42 U.S.C. § 18041, and 42 U.S.C. § 300gg-91(d)(21), the plaintiffs’ argument may seem the more intuitive one. Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)-(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.  [Italics in original.]

Friedman’s opinion, which gets into the “Chevron deference” doctrine–don’t ask; I might tell you–illustrates just how hypocritical it would be for the Supreme Court’s conservative majority to buy these plaintiffs’ argument once this case (or one of the other three being litigated in other regional federal courts) arrives there.

Which is not to say that that is necessarily a determining impediment to their doing so; we all know better by now than to think that it.  But I do think there is a point at which this type of thing becomes so clear that it penetrates the awareness of enough people to be of fairly widespread concern.  And although the justices themselves as yet seem unconcerned, there may come a time, fairly soon, when they conclude that that unconcern is untenable as a matter of social acceptance.  Then again, I’m not sure they will care.

 

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What to look for in tomorrow’s Supreme Court arguments in the Hobby Lobby/Conestoga Wood ACA-contraception-coverage cases

[The] conception of corporate personhood has profound and beneficial economic consequences. It means that the obligations the law imposes on the corporation, such as liability for harms caused by the firm’s operations, are not generally extended to the shareholders. Limited liability protects the owners’ personal assets, which ordinarily can’t be taken to pay the debts of the corporation. This creates incentives for investment, promotes entrepreneurial activity, and encourages corporate managers to take the risks necessary for growth and innovation. That’s why the Supreme Court, in business cases, has held that “incorporation’s basic purpose is to create a legally distinct entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

In recent constitutional law cases, however, the justices seem to have forgotten this basic principle of corporate law. In Citizens United, the court effectively held that corporations enjoyed the same free speech rights as ordinary individuals. Contrary to popular belief, however, the court did not base that holding on the idea that corporations are people. Instead, the justices said that corporations are “associations of citizens”—and those citizens who make up the corporation have constitutional rights.

Yes, Corporations Are People. And that’s why Hobby Lobby should lose at the Supreme Court., Adam Winkler, Slate, Mar. 17

Among the inundation of articles about Sebelius v. Hobby Lobby Stores, Inc.  and Conestoga Wood Specialties Corp. v. Sebelius in the months since the Supreme Court agreed to hear these cases–one, Hobby Lobby, in which the corporation won in the lower appellate court, the other, Conestoga Wood, in which the corporation lost–there are very among the ones I’ve read that make what I think is the critical point about these cases: the critical interplay between the Citizens United opinion and these two cases, and the reason why. It’s a point I made (or tried to) in a post on AB last fall, but Winkler is a constitutional law prof. at UCLA and, according to his mini-bio at the end of his slate article, he’s writing a book about the constitutional rights of corporations, so I was happy to read the paragraphs I quote above in an article published on a mainstream-media website.

For all the jokes about corporations attending church or being bar mitzvahed–yes, I plead guilty, but writing that post was so much fun!–the fact is that the corporations in those cases claim not that they are people but instead that they derive their First Amendment right to the free exercise of religion not from the state’s grant of corporate status but rather from the constitutional rights of its shareholders.  This argument–that corporations’ constitutional rights are derivative of their shareholders’ constitutional rights and therefore are not limited to, say, protecting the property that the corporation itself owns or to the ability to enter into business contracts on behalf of itself–comes courtesy of Citizens United, pure and simple.  Hobby Lobby and Conestoga Wood, unlike Citizens United, are for-profit corporations.  They both also are closely held, rather than publicly traded, corporations, and in both cases, the shareholders (members of a single family, in each case) are parties to the lawsuit along with the corporations themselves.

Mitt Romney’s ill-fated pronouncement that corporations are people, my friend, was funny, but it actually was an inarticulate adoption of Citizens United’s actual declaration: that corporations are “associations of citizens” whose members, as human individuals, have the familiar panoply of constitutional rights. One obvious problem with this derivative-constitutional-rights thing, though–albeit a problem that the Citizens United majority didn’t acknowledge–is that the individual shareholders of at least publicly-traded corporations don’t all hold the same political views.  Some shareholders are shareholders by virtue of participation in  large mutual funds, and others by dint of ownership in pension funds.  Some of them even in public-union pension funds!

Then again, at a recent oral argument at the Court in a case that, although it’s not an ACA  or religion case, I believe has implications for these two cases, Samuel Alito suggested that public unions are unconstitutional as a violation of … something. (Of his political views, I think.) If he prevails on this when that case, Harris v. Quinn, is decided, that would eliminate the problem of Democrats who are contributors to public union pension funds having Republican CEOs of mega-corporations serve as proxies to derivatively exercise the pension-fund contributor’s First Amendment speech rights. But the fact will remain that Democrats–who, contrary to Fox News reports, are people, my friend–have been known to own stock in large corporations, directly or through mutual funds or pension funds or some such.*

A seminal part of Citizens United, in other words, is its conflation of the CEO’s constitutional rights with those of the corporation’s–er, association’s–other citizens. The corporation itself may not be a person, my friend, but it derives its First Amendment rights from one (only one) of its citizen members.  Or, at least, only that one member serves as proxy on the derivative rights. (If the CEO is not a citizen, he or she can still serve as proxy for human members who are.) But what the plaintiffs are arguing in Hobby Lobby and Conestoga Wood is that these corporations derive their constitutional rights from all of these associations’ members: the family members who comprise the entire membership of this association of people.

The title of the Winkler article says that corporations are people.  By which he means, they are indeed associations of citizens.  Associations of citizens (and, probably, non-citizens) that, for purposes of healthcare insurance coverage, include the corporation’s employees. What Citizens United means in saying that corporations are associations of citizens is that the shareholders comprise an association of citizens whose proxy, for constitutional-rights purposes, is (apparently) its CEO.  But Citizens United did not address whether this association of citizens is necessarily limited to shareholders.  If corporations have constitutional rights derived from its individual members because they are associations of citizens, and if the association of citizens includes, by definition, employees as well as shareholders (no green-card holders or foreign shareholders allowed!)–and under Citizens United, there is no reason why it shouldn’t–then the act of incorporation itself confers derivatively to the corporation the constitutional rights of its employees.  Who have the constitutional right to have the same benefits of the ACA as similarly situated employees of other corporations.

Okay, my eve-of-oral-argument hunch is that the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.  The Court will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.  That’s because, well, apparently a slew of other associations of citizens–e.g., the business community at large–are making it known, including in amicus briefs to the court, that they’re downright scared to death of this end-to-the-corporate-veil/corporations-are-groups-of-citizens (who can be held individually responsible for their for-profit association’s liabilities) thing.

Or maybe they’re just scared to death at the thought of ExxonMobil or Amazon marauding through their towns bearing AK-47s in exercise of their derivative Second Amendment rights. It could be time for some for-profit associations of citizens to pray.

—-

*Paragraph edited after publication to correct a cut-and-paste error and to add the name of the referenced Supreme Court case, Harris v. Quinn.

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Obamacare plans bring hefty fees for certain drugs? Really? Well … it depends on what the meaning of “bring” is.

MIAMI (AP) — Breast cancer survivor Ginny Mason was thrilled to get health coverage under the Affordable Care Act despite her pre-existing condition. But when she realized her arthritis medication fell under a particularly costly tier of her plan, she was forced to switch to another brand.

Under the plan, her Celebrex would have cost $648 a month until she met her $1,500 prescription deductible, followed by an $85 monthly co-pay.

Thus begins a deeply (but apparently unintentionally) confusing, yet very important, Associated Press article titled “Obamacare plans bring hefty fees for certain drugs,” published yesterday.  (The title may be Yahoo News’s, rather than the AP’s; it’s not clear.)

“‘I was grateful for the Affordable Care Act because it didn’t turn me down but … it’s like where’s the affordable on this one,’ said Mason, a 61-year-old from West Lafayette, Indiana who currently pays an $800 monthly premium,” Kelli Kennedy, the AP writer, continues.

Where, indeed, is the affordable on this one?  The essence of the article is that many people who have chronic serious illnesses, including, as Kennedy says, cancer, multiple sclerosis and rheumatoid arthritis–and who, because of a preexisting condition,had had no access to any healthcare insurance or who, like Mason (as Mason explained to Kennedy), had insurance that did not cover treatment for preexisting conditions, are being hit by a specific of their ACA-compliant plan that they did not know about when they bought the plan: an apparently relatively new gimmick insurance companies are using, by which the company categorizes some high-cost drugs as “specialty-tier” drugs and by quietly including in their individual-market plans a 50%- “co-insurance” rate for “specialty-tier” drugs.

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Try Something Different, Dems. Like Actual Defense of the ACA. There’s Nothing to Lose But Loss Itself. Really.

Reader Alex Bollinger posted this this morning in the Comments thread to this post of mine from yesterday:

Not only would low-info voters benefit from actually knowing that the ACA is doing good, but a few lefties could use a reminder that it’s not just a neoliberal gift to the insurance industry.

I responded:

Yes, Alex.  Exactly.  It surprises me that the insurance industry hasn’t been sponsoring pro-ACA, anti-AFP-disinformation ads.  I realize that it would involve implicitly acknowledging that their past policies–e.g., denying individual-market coverage to anyone who had even a minor preexisting condition–but they’re in real danger of losing the single-payer war (or at least the public-option) war.

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Student Debt is Challenging the Reason for Getting that Long Sought After College Degree

What has changed for many of the college educated is finding themselves in debt longer than their parents were after college, being penalized for having student debt when going to buy homes, cars, etc., and in the end having less wealth and a lower salary when compared to those without a college education.

One reader’s comment. “I’ve been meaning to write back, but a large number of days on the road takes precedence. I disagree about the relevance of my experience working endless shit jobs while living in crappy apartments and eating pb&j to pay back my loans. That said, I do respect your opinion, and I hope you continue to share your thoughts about how entirely fucked up our priorities are as a Nation when it comes to education.

As my father who is in his late sixties recently said to me “sorry your generation got screwed”, something I’m quite cognizant of as I lose twenty grand selling a home to pursue a career. In the meantime, time to bust some ass and take care of what is in our power to affect. Patrick “Ripping Off College Students Economic Future”

The argument for a college education has always been the earning potential the 4-year degree holder has as opposed to those without a 4-year college degree. As more and more students have trouble buying into the Middle Class with the degree they have earned because of the overwhelming debt, the value of a college education has come into question considering the debt load carried by college graduates. What has changed in the last decade is tuition increases outstripping the cost of healthcare, the decline in state support for colleges, and the increased use of credit cards, home equity, and retirement account borrowing to fund college education. What remains after the piece of paper is passed out at graduation day is debt remaining with the student into his thirties and sometimes well into their forties.

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Here’s what “unaffordable” long-term leukemia care ACTUALLY looks like, Ms. Boonstra. And Rep. Peters.

Just when I thought I’d written my last post on Julie Boonstra, I read Kenneth Thomas’s post below, from Sunday.  The only comment to that post–mine, which I just posted–reads:

How very, very, very sad that there was no ACA during his years of leukemia treatments and hospitalizations, and that we still do not have single-payer.

And how ironic that he had the very same fatal illness that Julie Boonstra has.  I’d like to shove your post in her face, Kenneth.

I’d also like to see Rep. Gary Peters use this family’s situation in his Senate campaign ads in Michigan, and ask whether Julie Boonstra has any idea of what “unaffordable” means with respect to medical care for leukemia.

When she cut the first of her two ads for AFP in mid-February, Boonstra apparently was genuinely unaware of the full terms of her new Blue Cross plan and of the out-of-pocket-costs limitations legislated in the ACA.  And part of the reason why was the failure of healthcare.com to work in October and November and, apparently at least for Michigan’s exchanges, during early December–coupled with Michigan’s decision to not provide its exchange system through a webstie and run and operated by the state.

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Okay, so why was Julie Boonstra advocating for lower-cost oral chemotherapy treatment in Washington when she was getting that medication for a set, low monthly price under the insurance plan she liked and did not want to part with? Was she concerned about reaching her annual or lifetime coverage cap?

Boonstra is the ex-wife of Mark Boonstra, the former Washtenaw County GOP chairman whom Gov. Rick Snyder appointed to the Michigan Court of Appeals in 2012. Julie Boonstra said she’s never been a political person beyond advocating for lower-cost oral chemotherapy treatment in Washington. [My boldface.]

Dexter cancer patient who called health care ‘unaffordable’ will save more than $1K, Marisa Schultz, Detroit News, Mar. 10

Boonstra famously was quoted in that article as saying when told the details of her new Blue Cross plan that it  “can’t be true” that that plan is cheaper, by a minimum of $1,200 for the year, than her old plan. “I personally do not believe that,” Boonstra told Ms. Schultz.   Schultz continued:

She said she still fears her costs will be unaffordable because she could be hit with large out-of-pocket bills in the early months when she wouldn’t have the money to pay. She also said her out-of-pocket maximum could be higher than advertised because there’s one prescription that was previously covered by her old plan that isn’t and she now buys with a separate prescription discount card.

An interesting comment thread developed here during the last few days in response to my post on Tuesday about the Detroit News article.  I titled that post “Julie Boonstra Tells the Detroit News Why Her New Healthcare Plan Doesn’t Work for Her: It Requires Her to Read the Policy or Ask Blue Cross a Few Basic Questions In Order to Learn What the Plan Actually Covers and What Her Expense Cap Is.”  One subject of the discussion concerned her statement that there’s one prescription that was previously covered by her old plan that isn’t and she now buys with a separate prescription discount card.  I pointed out that she does not say that that prescription is part of her cancer treatments, and that according to a Blue Cross spokesperson Ms. Schultz contacted for the article, it is not; all her cancer drugs are covered.

I also noted that Boonstra has not said that her old plan covered all medications.  She just said it covered all of her current medications.  And since I happen to know, having shopped there many times, that there is a Rite Aid pharmacy on the far west side of Ann Arbor, just east of Dexter, a village that is a small bedroom community mainly for people who work in Ann Arbor, I posted this from Rite Aid’s website:

Rite Aid, 500 generic-brand prescriptions available: $9 for a 30-day prescription; $16 for a 90-day one.

I also said in that comment something that, surprisingly, no one else (to my knowledge) has mentioned:

She also, by the way, has not said–because she doesn’t know, and either does Blue Cross–what her old plan would have cost in monthly premiums and out-of-pocket expenses and co-pays THIS YEAR, had the plan not been discontinued. But it sure as hell would be interesting to know how her old plan differed in costs and coverage last year from the year before, and how much her premiums and out-of-pocket and co-pay costs went up in, say, the last five years on that plan.

But there’s an even more fundamental question about Boonstra’s comments to Ms. Schultz: Why was Boonstra advocating for lower-cost oral chemotherapy treatment in Washington during a period when she was paying set, low monthly out-of-pocket costs and was happy with her plan?

When I first read the article it seemed strange to me that this anti-federal government Republican was advocating in Washington for federal regulation of the cost of a particular medical prescription.  But only after reading through the comments to my post on the article, in which I did not mention that statement of hers, but a commenter to the post did, did it occur to me that there was something more, something fundamental, wrong with this picture.

This clearly is someone who is locked deep inside the Fox News/Rush Limbaugh sphere of reality.  She seems to want a single-payer, Medicare-for-all type of healthcare insurance system, and wants the actual benefits of the ACA, including, apparently–no, undoubtedly–the removal of annual and lifetime caps on coverage. And it’s a safe bet that she personally does not believe that the ACA includes these bars, and that that is why her old plan was cancelled.  It can’t be true, because Fox News and Rush Limbaugh haven’t mentioned it.

This woman is among those who cannot be reached with facts.  But they are in the minority among the electorate. It’s deeply unfortunate that our Democratic president won’t educate the public about the actual specifics of the plan.  He doesn’t do specifics in speaking to the public, and doesn’t do facts and explanations at all. And he certainly doesn’t do refutations of misinformation.

We know by now that hell will freeze over before he refutes Boonstra, Emilie Lamb and the others in the AFP ads, and I guess that’s okay, because everyone’s tuned him out anyway.  But why has it taken so very, very long for the Dems to begin to take over this slack?  Their failure to do do this because Obama is unpopular is a key reason why Obama is so unpopular. Or at least a key reason why Obamacare is unpopular.  Which, apparently more than anything else, is what matters this election cycle.

As for Boonstra, reader Alex Bollinger posted this comment this morning to my earlier post:

Yes, we should feel compassion for this woman. And our blame should be mostly on the political consultants who are taking advantage of her loyalty to movement conservatism (I don’t think she’s stupid at all because I’ve seen very intelligent people really, really want to believe something is true so much that they believe their rightthink).

But her comments are intended to rescind the ACA, which has already insured over 12 million people. I’m sure there are people who either have or will get cancer among those 12 million. Just because they don’t have TV ads doesn’t mean that their lives aren’t important as well, and Boonstra has the ability to temper her ideological fervor with, you know, having a basic understanding of her plan before going on national TV to talk about it.

Exactly.

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The PPACA Penalty Fee in 2014 Misinformation

A lot of people think that all they have to pay is $95 in 2014 to get around the PPACA. The $95 penalty is true if you make < $19,650 in Household  income and this comes after your deduction of $10,150. The individual shared responsibility payment is capped at the cost of the national average premium for the bronze level health plan available through the Marketplace in 2014.

The penalty in 2014 is calculated one of 2 ways. You’ll pay whichever of these amounts is higher:

  • 1% of your yearly household income. (Only the amount of income above the tax filing threshold, $10,150 for an individual, is used to calculate the penalty.) The maximum penalty is the national average yearly premium for a bronze plan.

  • $95 per person for the year ($47.50 per child under 18). The maximum penalty per family using this method is $285.

The way the penalty is calculated, a single adult with household income below $19,650 would pay the $95 flat rate. A single adult with household income above $19,650 would pay an amount based on the 1 percent rate. (If income is below $10,150, no penalty is owed.)

The Individual Shared Responsibility Payment – An IRS Overview

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