HEALTH CARE BILL VIOLATES THE FIRST AND FIFTH AMENDMENTS
Attorney Jonathan Emord
April 12, 2010
The health care bill passed into law on March 21 violates the First and Fifth Amendments to the United States Constitution. The bill mandates that almost all Americans acquire health insurance, thus divesting millions of Americans of money against their will and providing it as an enormous government mandated windfall to the nation’s insurance companies. Thirty-eight states attorneys general are preparing to file suit against the federal government to challenge the new law. This is the first time in American history that the federal government has compelled the citizens of this country to buy a specific product, health insurance. That mandate violates our basic right to liberty which includes not only the freedom to purchase goods and services lawfully available in the market, but also the freedom not to purchase those goods and services, and the right to associate and not associate with institutions of our choice.
The health care bill works a perverse coercion on the American public, compelling virtually everyone to obtain private health insurance. A family of four earning $66,370 would have to pay $5,243 for health insurance under this bill, whether the family wished to be insured or not. Those who refuse to pay suffer a tax penalty to force them into the ranks of the insured.
The content of this bill is largely the same as that presented by the insurance industry to Congress, so there is glee in that sector as they endeavor not to estimate the billions that will come there way by force of the federal government. Imagine if your local business was the beneficiary of a law that compelled every citizen in town to buy your product. You alone would be delighted at the loss of freedom of choice experienced by your neighbors. For them, the compulsion would spell tyranny. My hope is that enough Americans value their freedom to eject from office those who voted for this terrible bill.
The health care bill presents a critical constitutional challenge. If the courts defend the Constitution in this instance, the new law will be held unconstitutional in most, if not all, of its parts. If the courts do not defend the Constitution, prepare yourself for more mandates from the federal government on how you spend your money. Increasingly the after tax dollars you thought were your own to spend will be governed by judgments made in the Congress of the United States. Liberty as we know it will not survive this assault.
The right to liberty is protected by the Fifth Amendment against action by the federal government. It ensures that Americans may act or refrain from acting in the legal market for goods and services. If a good or service is lawfully available, there is no constitutional power by which the federal government can compel a citizen to purchase that good or service. The decision whether to be insured or not involves an individual assessment of risk taking and preference for association.
The freedom of association is protected by the First Amendment against action by the federal government. It ensures that Americans may act or refrain from acting in choosing to associate with an individual, group, or business. If, for example, we oppose conventional medicine, believe in reliance on self help, or otherwise as adults elect not to take advantage of the services funded by private insurance, we have the right to avoid that association under the First Amendment freedom of association.
The First and Fifth Amendments provide us with freedom of choice. We are equally protected in our right to make legal choices that others may perceive as good for us as we are to make legal choices that others may perceive as not good for us. Thus, a three hundred pound man can eat large quantities of fattening foods despite the judgment that he ought to diet. The alternative is legal and the consequences are personal. Consequently, there is no lawful right for the community to take away the liberty our rotund friend enjoys. He has made a choice to risk physical injury for gustatory pleasure.
A healthy twenty-three year old may elect to save monies or expend them on education or career development rather than purchase health insurance. The use of the resources otherwise expended for health insurance can be indispensable to the pursuit of that person’s education or career. Risk taking is characteristic of youth, particularly as they endeavor to find a way in the world of education and business.
Regardless of the reason, adults have a well recognized constitutional liberty right to refuse treatment. That extreme position is understood to be the right of a person even when treatment would prolong life. A logical corollary to that right is the right to refuse to pay for insurance to cover treatments. While an individual has no constitutional right to receive medical treatment, he or she may refuse it and, likewise, may refuse to pay for goods and services associated with the receipt of it.
If a court were to uphold as constitutional federal government mandates compelling individuals to obtain health insurance, it would open the door to all manner of mandates paternalistically said by Congress to be good for us. So, for example, why not mandate that every American buy a certain minimum quantity per capita of foods defined as wholesome to reduce the incidence of disease? Why not mandate that every American buy a certain quantity of “green” energy products every year or buy an electric car?
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If the first national law compelling the purchase of a product (here national health insurance) does not fall as a violation of our right to liberty under the Fifth Amendment, then there will be no end to the kind of limitations on individual liberty that the government can impose on the presupposition that it knows better than we do individually what is in our own best interest. That is the end of liberty. It is quintessentially the definition of tyranny.
© 2010 Jonathan W. Emord - All Rights Reserved