Mississippi State Senator Chris McDaniel and I have filed a class action lawsuit today, Good Friday 2010, challenging the constitutionality of the Patient Protection and Affordable Care Act, also known as “ObamaCare” and a variety of other less polite euphemisms.
We believe that the PPACA is DOA for several equally important reasons, but only one of which has received much attention. Most folks know by now that Congress has invoked the Commerce Clause to justify this massive expansion of governmental power. Our “Good Friday” Complaint spends many pages discussing how Congress has clearly exceeded the limits of its power under the Commerce Clause. I strongly urge you to read the entire Complaint. What I really want to point out, though, are some things you probably don’t know, and definitely will not like — even if you consider yourself a “Liberal.”
Consider for a moment that you have now been commanded to enter into a contract with an insurance corporation, whether you want to or not, whether you need to or not. Yes, there are many who actually choose to be uninsured. For most, it is simply an economic decision that often works out to the uninsured’s economic advantage. Not always, of course, but that’s the beauty of liberty — you get to make the decisions, and live with the good or bad that comes of them.
Now that you realize that a dictate has been handed down, compelling you to contract with an insurance corporation or else, consider what you have to do. It’s not like you can go to a vending machine, swipe your debit card and pull out a policy. You still have to apply. True, they cannot turn you down, but so what? You still have to give a big, scary, mean corporation a lot of private medical and psychological information about yourself and your family. Then, forever after, the insurance corporation’s bureaucrats will gather this private information without even bothering to let you know. As our Complaint states:
Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.
Do you have an STD? How many abortions have you had? How about a sexual dysfunction? Did your father or mother have cancer? Do you have a birth defect? Have you ever been prescribed drugs for a mental condition, such as anxiety or depression? There are many reasons people have concerns over their medical privacy. The desire to keep one’s medical history private is universal.
Privacy, choice, and Roe v. Wade
Medical privacy is so important that we have enshrined it as fundamental right in the Fourteenth Amendment to the Constitution — just ask the Supreme Court, which even allows women to kill unborn children in order to protect their constitutional right to medical privacy.
If you want health insurance badly enough, you’ll probably choose to give up your medical privacy rights to an insurance corporation. But perhaps you are indifferent to buying health insurance in the first place, and really, you don’t want it in writing anywhere that you’ve had two abortions, or eat Viagra like popcorn. You’ve decided that it would just be better to pay for your healthcare directly and avoid the entire insurance hassle. What’s wrong with this choice? Nothing, if you believe in the concept of liberty.
Forcing citizens to enter into a contract to buy insurance is a bit different than requiring them to buy a loaf of bread. Congress cannot conceivably be said to have the power to force you to buy a loaf of bread, even though that would indeed have some effect on interstate commerce. Think about how much more egregious a denial of liberty it is to force people to contract with an insurance corporation. Those contracts create rights and obligations for both parties, but guess who gets to write the contract? Hint: insurance corporation lawyers. It’s an actual contract that you will actually be forced to sign by your government. You will not have any bargaining power to alter the contract; it’s not even a “take it or leave it” situation, it’s “take it or face the legal consequences.”
Which brings us to another important but poorly understood issue: Just what are the consequences? Exactly how will the mandate will be enforced? Unfortunately, this is something that none of us really know. Congress states outright that there will be a “penalty” assessed for citizens who disobey their command. These lawbreakers will have to pay an amount that will be assessed as a tax. Yes, we all know Congress has the power to tax, but remember, Congress itself has called this tax a “penalty.” As we explain in our Complaint,
Central to the definition of penalty is the “idea of punishment” – “[p]unishment imposed on a wrongdoer . . . in the form of imprisonment or fine. Though usually for crimes, penalties are also sometimes imposed for civil wrongs.” Black’s Law Dictionary 1153 (7th ed. 1999).
Yes, you wrongdoers who decide to go without insurance will be punished by the federal government. You will have to pay a special tax that applies only to wrongdoers like you. The Complaint points out that this “constitutes a capitation and a direct tax that is not apportioned among the states according to census data,” which is unconstitutional in itself. But this does not make great bedtime reading, so I’ll let you in on a secret: It’s a tax that they cannot make you pay.
A plain reading of the individual mandate shows that Congress first sets forth a penalty for failure to buy insurance, then says that regardless of anything written anywhere else in any other law, there can be no criminal penalty:
”(A) WAIVER OF CRIMINAL PENALTIES.–In the case of
any failure by a taxpayer to timely pay any penalty imposed
by this section, such taxpayer shall not be subject to any
criminal prosecution or penalty with respect to such failure.
Then, to make it even very difficult (perhaps impossible) to civilly enforce the penalty/tax, Congress denied the government any power to file liens or levy any wrongdoer’s property:
”(B) LIMITATIONS ON LIENS AND LEVIES.–The Secretary
shall not–
”(i) file notice of lien with respect to any property
of a taxpayer by reason of any failure to pay the
penalty imposed by this section, or
”(ii) levy on any such property with respect to
such failure.”.
If the feds cannot levy or lien you, then what can they do to get your money? Write scary letters to you? Just what happens to the authority of the federal government when people laugh at these scary letters?
What indeed. We have demanded in our Complaint that if the government has some trick up its sleeve, that we be told what it is. If we are to be punished for not buying something, we deserve to know ahead of time what that punishment might be. That’s not just an old American tradition, it’s a constitutional principle.
The alternative, of course, is for the feds to admit that there is no enforcement mechanism. Consider what that means for a minute: the pièce de résistance of the PPACA is the individual mandate. Without an enforcement mechanism, the individual mandate fails; without the mandate, the entire legislative act fails utterly.
If the government admits, or the federal judiciary declares, that there is no enforcement mechanism for the individual mandate, millions will be free to ignore it. We believe, though, that the lack of an enforcement mechanism makes the individual mandate unconstitutional for reasons that we will discuss further with the federal court for the Southern District of Mississippi.
A call to service
We’ve got Mississippi covered. Now we need for you to do your part to take back your liberty. This lawsuit can be filed in every state in the greatest nation on earth, and it should be. Wherever this abomination applies, there is at least one federal court, often many. Find them, take our lawsuit, change the names and file it. Add to it if you have more arguments. If you are serious about doing so and need information, we are easy to find.
We have much more to say about the unconstitutionality of this abominable act of Congress, and we’re looking forward to your comments. God bless America!
Full Complaint below: