Wednesday, April 7, 2010

Trial Lawyer and Republican State Senator File Class Action Against Health Care Reform

On Friday, Hattiesburg plaintiff's lawyer and blogger K. Douglas Lee and Mississippi State Senator (and host of the Ride Side Radio Show) Chris McDaniel (R-Ellisville), filed a Federal class action lawsuit seeking injunctive and declaratory relief against the 2010 Patient Protection and Affordable Care Act.

The Complaint makes an interesting argument that the Health Care Reform Legislation violates the privacy rights of Americans. As Mr. Lee explains in his post about the lawsuit (which includes a copy of the complaint):

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.
I have to admit, that's pretty unique "out of the box" thinking, and I kinda admire it. But it seems to me that the whole conservative/Fox News argument that the "mandate" is some kind of imperial command is misplaced. The Act provides for a penalty or tax to be paid by persons who don't obtain health insurance. And as Mr. Lee points out, the tax is unlike most other Federal taxes, in that there can be no levy or criminal prosecution of persons who fail to pay the tax:

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?

* * * *

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.
Setting aside whether the IRS could file a lawsuit against non-payors, or take it out of tax refunds, and also setting aside the idea that the point of this lawsuit seems to be to encourage non-compliance of the law (an oddly un-conservative notion) . . . .

It's interesting that the authors of this lawsuit think:

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.
Well, no, it doesn't. Without the individual mandate, the Act still requires insurance companies to cover applicants, with or without pre-existing conditions. If the insurance carriers can't have the pool of healthy persons to collect premiums from, then the folks who have pre-existing conditions (but who in the past did not buy health insurance) will bankrupt the insurance companies? The ultimate result? A single-payer national health insurance plan.

So you want "socialized medicine?" Then sue to have the individual mandate struck out of the health care act, or encourage folks not to comply with it.

If you're interested, some good analyses of the constitutionality of the Act are here, here, and here.

2 comments:

Casey Ann said...

What happens to those who "choose" not to buy health insurance now when they get really sick or are in an accident? They go to the emergency room or the hospital and never pay their bills. Guess who pays for those unpaid bills - those of us who "choose" to be responsible - through higher hospital costs and increased premiums. That is patently unfair.

That's what happened with car insurance, and that why mandatory car insurance exists. No one hollering and protesting about that now - although they did when the law passed.

That's why HCR is such a good idea. It makes everyone pay their fair share. Of course, tea baggers prefer to mooch off of the rest of us.

nmisscommenter said...

What the quoted post's asinine riff on the "freedom to chose" misses, of course, is that he's enshrining a lottery where the payoff is bad-- "Yes, bad things can happen, but that's what comes with the freedom to chose! You can randomly turn out to be the person who gets cancer, but hey-- you chose, deal with it!"

I did try to read through their lawsuit over the weekend and just could not keep my interest.