Ivan Hoffman, B.A., J.D.


          When the Nazis rounded up the Jews and sent them to concentration/extermination camps, in order to make sure that the condemned would cooperate and not protest what was about to happen to them, or maybe it was just a cruel joke, the Nazis told the Jews they were going to get a shower.   “See,” the Jews probably said, “they’re not so bad after all.”   I mean, who would not want a nice shower after a long and dusty train ride?

          Good people were simply not capable of imagining that anyone could be so cruel. 

          What is diabolical about the Republican party in nearly its entirety and the President in particular is the way they phrase their plans to destroy the poor, the poorly educated, those who are anything but rich and white, and make it seem like those plans are a benefit to those parties who are about to be decimated and thus those parties should consider the Republicans and the President to be their heroes, their saviors. 

          Let me give just a couple of examples. 

The ACA Lawsuit 

          As of this writing, the Supreme Court set the case about the Affordable Care Act (“Obamacare”) down for oral argument sometime in the 2020-2021 term and thus any decision on this case will not be handed down until after the general election.  

          Remember that the parties bringing this lawsuit in the first instance, which was originally filed in Texas, are Republicans.  These are the same Republicans who claim they want to protect coverage for pre-existing conditions, something that the lawsuit directly seeks not to protect.   (see further discussion below)  The President has filed a brief in this case echoing the same argument to eliminate the entirety of the ACA including coverage for pre-existing conditions (see more below) Read “The ACA Lawsuit and Its Implications.”          

          But let me focus on the diabolical.  In the Tax Cut and Jobs Act, passed in 2017 by a House and Senate controlled by the Republicans and signed by the President and effective in January, 2018, the payment obligation for those not electing to be covered under the ACA was made “$0.00.”  (Part VIII amending section 5000 A of the Internal Revenue Code)   What a “gift” it seemed that those who were otherwise to be covered by the ACA were being given.   “Wow!”  “Thank you Republicans and Mr. President!” 

          But the “savings” were not a shower…anymore than the Nazi “shower” was a “shower.” 

          It appears that the Republicans and the President knew exactly what they were doing.   They knew that the United States Supreme Court had found the amount levied for failure to get coverage to be constitutional ONLY because the payment obligation was deemed a “tax” and thus within Congress’ powers.  National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)   The Republicans have wanted to take away the ACA since it was passed and the President wanted to also take it away because of his desire to wipe out any vestige of President Obama’s legacy.  But the Republicans and the President could not do so by legislation even when they controlled both houses of Congress and the Presidency (remember Senator McCain’s thumbs down).   So they began to approach it from a legal side and so they could claim “deniability” when the law was struck down by claiming that it was the courts, not the Republicans or the President, who did so.   

          Thus, nearly concurrent with the effective date of the Tax Cut and Jobs Act, they began their legal attack on the ACA in the federal courts in Texas, a Republican stronghold.  They made the argument then, as they are now, that the Tax Cut and Jobs Act took away any validity of the ACA because the individual mandate was a tax and thus, because the tax is now $0.00, the individual mandate is invalid and because the individual mandate is essential to the entirety of the ACA, the entire ACA must fall as unconstitutional.  It wasn’t like a surprise to them to find this “loophole” on which to peg their case….they created the “loophole” so that they could rest their case on it. 

          In June 2020, the President, through his justice department, filed a brief in the case pending before the Supreme Court, demanding that the entirety of the law be declared unconstitutional.  In its brief to the Supreme Court at page 6, the President states: 

The federal government agreed that the individual mandate is no longer constitutional and argued that the guaranteed-issue and community-rating requirements are inseverable from it. 

          The President’s brief in the United States Supreme Court further states, at page 13: 

The ACA’s remaining provisions are likewise inseverable, because it is evident that Congress would not have enacted them without the individual mandate and the guaranteed-issue and community-rating provisions. The NFIB joint dissent would have so held, and that conclusion is still equally valid today. Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these three integral provisions. The entire ACA thus must fall with the individual mandate, though the scope of relief entered in this case should be limited to provisions shown to injure the plaintiffs.  

          So even though the President claims that he will issue an executive order protecting pre-existing conditions, what would be the reason he and the Republicans are seeking to have the Court overturn the ACA including its coverage for pre-existing conditions?   Does that claim sound credible to you?

          It is worthwhile noting that a legal argument could be made that the TCJA did not eliminate that tax at all but merely set it to $0.00 and that Congress has the power to adjust that tax and set it at any amount it chooses (as it did for years prior to 2015) and that that is all that it did.  It did not eliminate the tax (the use of that word is only part of the descriptive title of the section but forms no part of the actual law).   Indeed the explanatory notes (JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE) to the TCJA law, at page 153, reads:

The Senate amendment reduces the amount of the individual responsibility payment, enacted as part of the Affordable Care Act, to zero.

          And in the actual Internal Revenue Code section 5000A, there is nothing that reflects any “elimination” of the tax.  The title of the section reads: 

26 U.S. Code §?5000A.Requirement to maintain minimum essential coverage 

         Moreover, as the dissent in Texas vs. California (the Texas appellate case that ruled, 2 to 1, that the provisions were unconstitutional) indicates, all that Congress decided when it passed the TCJA was that the penalty would be set at $0.00.   Had Congress wanted to declare the entirety of the ACA terminated, it could have done so.

         If you are a Republican and supporter of the President you have to ask: 

Why would you vote for a man, for a party, that wants to take away your healthcare coverage and force you into bankruptcy and poverty if you ever get sick?

The Payroll Tax Cut 

          And in the midst of the pandemic, with millions unemployed and worried about their health, their families, their security, the Republicans and the President are trying to sneak provisions into a relief bill that will be used to gut and eliminate Social Security and Medicare.   But because it is a “tax cut,” what a gift we, as recipients feel we have gotten! 

          When that bill could not pass, and in the clearly transparent guise of being a benefit to help these same people financially during the pandemic, the President mandated via executive order that same payroll tax cut.   Never mind that you have to be employed to get any benefit out of a payroll tax cut and the vast majority of persons needing such assistance have no jobs.  Never mind that it is nothing but a fully repayable “advance” until next year unless, in the President’s words, you re-elect him and then he says he will eliminate the repayment aspect.  Indeed, as mandated by the President, it may result in a very significant tax liability for  the “recipients,” which will not be known by them until after the election.   The real diabolical plan is that payroll taxes are the main source of funding for Medicare and Social Security, and since the Republicans and the President have wanted to cut and eliminate those programs for many years, by getting the recipients of this “largess” to look at the payroll tax cut as a gift from their captors, the captors can claim “Hey, you voted for it!”   And the President can claim “Hey, you voted for me!” 

          But the “tax cut” is not a shower…anymore than the Nazi “shower” was a “shower.” 

          If you are a Republican and supporter of the President you have to ask: 

Why would you vote for a man, for a party, that wants to take away your Social Security and Medicare and force you into bankruptcy and poverty if you ever get old and sick?  

          I will leave the answers to the above questions to those who should be asking the questions but let me add that if you believe that the President disparages soldiers, veterans, supporters and  others by calling them “losers,” “suckers,” “fools,” “schmucks” and “disgusting,” but you believe he doesn’t believe the same about you, well…..


          For the rest of us, it may be that good people are simply not capable of imagining that anyone can be so cruel.


Copyright © 2020 Ivan Hoffman.  All Rights Reserved. 


Ivan Hoffman has been practicing intellectual property law for over 47 years and has written extensively about the topic. (www.ivanhoffman.com).  


This article and any video are not legal advice and are not intended as legal advice.  This article and any video are intended to provide only general, non-specific legal information.  This article and any video are not intended to cover all the issues related to the topic discussed.  You should not rely on this article and any video in any manner whatsoever and you should not draw any conclusions of any sort from this article and any video.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article and any video are based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article and any video are do not create any attorney client relationship and are not a solicitation. 


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