On May 12, 2010, the U.S. Citizens Association and five individual plaintiff members of that association (Nathan R. Glick, Christopher Barr, Shane K. Ellison, James Grapek, and Eileen Dannemann) filed an historic suit in the United States District Court for the Northern District of Ohio, challenging the Patient Protection and Affordable Care Act (Pub. L. No. 111-148, H.R. 3590), as amended by the Health Care and Education Reconciliation Act (Pub. L. No. 111-152, H.R. 4872) (what the public knows as Obamacare). The suit is unlike every other filed to date against Obamacare. It is filed on behalf of individuals who do not have health insurance and do not want it. The U.S. Citizens Association plaintiffs present a direct challenge to the most significant aspect of Obamacare, the mandate that every American obtain health insurance.
Can the government constitutionally compel an American citizen to spend his or her after tax dollars to purchase a single product, health insurance, against that citizen’s will? The plaintiffs in this suit contend that their liberty right under the Fifth Amendment, their right to privacy protected by the First, Third, Fourth, Fifth, and Ninth Amendments, and their freedom of association protected by the First Amendment forbid that compulsion.
I must disclose a personal bias. I am lead counsel for these plaintiffs. The suit is critical not just for them but for all Americans who value freedom. If it succeeds, key elements in the defense of a Constitution of liberty will be upheld. If it fails, there will be no precedential barrier in place to prevent the federal government from placing additional mandates on private expenditure of after tax dollars.
If the government may constitutionally compel you to buy health insurance with your after tax dollars on the simple public interest argument that all Americans must needs be insured because all must be able to pay for health care, what can stop the government from imposing other mandates on your after tax dollars based on comparable public interest arguments? For example, many members of Congress think fossil fuels evil and wish the pollution they create would disappear. What is to stop Congress from requiring every American who owns a car that runs on fossil fuels to purchase a replacement electric car by a date certain? Why not pass legislation requiring every American located in a region where sunshine is prevalent to purchase solar panels for electric heating in place of power plant generated electricity? Why not pass legislation requiring every American to purchase a set amount of foods per capita deemed by the Food and Drug Administration to be health enhancing? Surely there is a public interest in reducing air pollution, reducing reliance on electricity provided by public utilities, and improving the quality of foods consumed in the American diet.
The mandate imposed by Obamacare is designed to force the nation to favor one industry sector, the insurance industry. It operates on the supposition that insurance is an essential public good. Political decision makers might likewise deem low interest loans an essential public good and mandate that we place a certain amount of our income in government qualified “savings” accounts to help keep interest rates down. They might deem low cost day care an essential public good and mandate that all pay for private day care services, whether they have children or not, to ensure that daycare is affordable for parents in need. If the Constitution permits the federal government to impose mandates on use of after tax dollars to support one industry that political decisionmakers think wise, here health insurance, there is no end to the mandates that can be placed on the expenditure of private resources.
There is at least one undeniable problem with mandates of this sort: they sacrifice individual freedom of choice. They violate the Constitution’s taxing provisions by usurping control of money that is not taxed. The right to direct how your after tax dollars are spent is indispensable to human liberty in a free enterprise economy. Suddenly not only does government assert jurisdiction over the dollars you pay in taxes, but it also presumes to control your after tax dollars, placing public mandates on your private resources to achieve an ever illusive (and ever changing) public good (or, at least, what those in political power deem good). This system operates on the offensive assumption that political decision makers know better than you do what is in your own best interest. On that supposition, those political decision makers will dictate how you spend the very resources on which you depend to be free and independent.
The First Amendment protects your freedom to associate. Under Obamacare, that freedom to associate is taken from you. You must associate with a “qualified” health insurance plan even if you would prefer not to, with precious few exceptions.
The Fifth Amendment protects your right to liberty. The Supreme Court has recognized the liberty right to include the freedom to refuse unwanted medical treatment. Inherent in such refusal is the refusal to pay for unwanted treatment. The Obamacare mandate violates that freedom. It is fundamental because the freedom to refuse medical treatment would be rendered nugatory if that freedom to refuse did not include a freedom to refuse paying for unwanted care.
Various amendments to the Constitution have been deemed bases for assertion of a right to privacy. Central to that right is the protection of health information from unwanted eyes. The Obamacare mandate violates the right of privacy because it forces individuals not insured to obtain health insurance and, by so doing, divulge to insurers their health status (including all physical and mental health information). It thereby forces individuals to reveal to private companies (and to the government) confidences against their will.
In addition to these rights violations, Obamacare operates on the supposition that there is no limit to the extension of the commerce clause when it comes to health care. If correct in that supposition, the Constitution not only condones after tax mandates on expenditure of private resources but also permits those mandates to be imposed on individuals who have no substantial effect on or relationship with health insurance and health insurance markets. The individuals subject to Obamacare mandates in this suit are being regulated because of their choice not to be insured, not because they have involved themselves with health insurance or health insurance markets. Thus, as applied to them, Obamacare obliterates every limit on the extension of the commerce clause.
Our freedom of choice is often expressed in economic terms. Our freedom to travel depends on the liberty to expend money necessary to pay for a preferred mode of transportation. Our freedom to invest in new business enterprises depends on the liberty to risk our own capital in a venture that may or may not succeed. Our freedom to purchase goods or services depends on the liberty to choose among those available the one or ones we think right for us.
Freedom of choice includes the freedom not to choose. The right of dissent, a time honored right meant to be protected against coercive government, cannot coexist with law that compels all to use their own resources to uphold and promote state preferred industries. Much is at stake in this litigation. For the sake of liberty, we should all pray that the plaintiffs are successful.