Go Ask Alice, Or, Maybe, Barack

The nation's new national health insurance act will be signed today. Before the Sun sets, I suspect lawsuits to be filed challenging the act. Although I favor a national health insurance system, I hope the law suits succeed.

The attorneys general of ten states plan suit to challenge the act on Tenth Amendment grounds: The federal government's decision to require states to spend money they don't have tips the balance of federalism, the argument goes.

And it's not a bad argument. Federal jurisdiction is supposed to be limited. The power to regulate the health, education and welfare is typically a state power. But, let's face it, times have changed, in spite of the fantasies of originalists.

The more interesting argument is whether the Government can compel folks to spend. I hope the answer is no. Anything less seems a whole lot like Aldous Huxley's Brave New World, a society of folks compelled to spend in the name of the public good.

I'm no politician, but it strikes me that a more honest way to achieve health care for all is simply to expand eligibility for pre-existing entitlement programs, There are already broad bureaucratic infrastructures in place for Medicaid and Medicare. Let more folks have access to those programs.

But using the Internal Revenue Service to monitor compliance with the requirement to spend? What next? national nutrition standards? A federal dress code for the schools? I keep looking for some source of the federal power here.

I've not read the bill, so perhaps the answer is obvious, but someone please tell me that more than the Commerce Clause was used to anchor this Brave New World of ours. If illness effects interstate commerce, then so does poor nutrition, violence, the common cold, you name it. In a shrinking world, we're all one. Praise Kumbaya.

If I understand the bill, individuals must now purchase plans meeting certain minimum standards. The failure to do so will be met with penalties. I simply can't think of a broad-based law like it. The Federal government has now criminalized the the failure to consume what the Government thinks is good for us?

I am trying hard to rejoice over the fact that millions of Americans who lack health insurance will now have access to it. But I can't. The bill appears to be as bold a reach of federal power as any I have seen in recent years.

It's time to research claims against those seeking to enforce the act. Are there Constitutional remedies than can be litigated under 42 U.S.C. Section 1983? Or will the courts grant immunity to federal officials who seek to fine us for not purchasing what the Government wants us to have?

The power to tax, the Supreme Court once wrote, is the power to destroy. Now it is also the power to make us healthy. Is that newspeak? Didn't totalitarians warn chorttle about forcing people to be free?

I don't get it. Why this particular execration when there was a simpler route?
Comments (3)
Posted on March 23, 2010 at 4:50 pm by Norm Pattis
My bad on Bivens. I know better; Have lon...

My bad on Bivens. I know better; Have long viewed Bivens as extending 1983 doctrine to feds. Thanks for correx.

Form matters to me. Telling me I must buy something is chilling. Taxing me on a per capita basis for a general entitlement makes better sense. Credits are used as incentives all the time. Fining people for not buying seems like a significant, and non-formal, difference in kind.

Posted on March 23, 2010 at 4:35 pm by Donald
No remedy under 1983 against federal officials...t...
No remedy under 1983 against federal officials...that'd be a Bivens action.

And isn't the "mandate" problem really just one of form? Certainly, Congress could raise everyone's taxes by $750, and then provide a "credit" to anyone who has health insurance. You'd get the same end result as with the mandate and penalty.

Posted on March 23, 2010 at 3:13 pm by Ray Sipsa
If I remember anything from law school it is this:...
If I remember anything from law school it is this: Congress has almost unlimited power through the commerce clause. And whatever power it lacks can be purchased by giving the states money with strings attached. That being said, everything is up for grabs with the current edition of the U.S. Supreme Court.
For Display:
(Won't be displayed with comment)

Comment must be approved,
then will show on this page.

What color is the ocean?

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Personal Website


Law Firm Website


I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

Pattis Video