Friday, October 25, 2013

I Think I’m Going To Need A Lawyer . . . How The Affordable Care Act (Obamacare) Is Unconstitutional.

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The Basics: The Affordable Care Act, in addition to failing to provide health care for low-income Americans is arguably Unconstitutional in a way the Republicans do not want to expose!

Ever since the Affordable Care Act was signed into law, the Tea Party and conservatives have been going after the law with a vengeance that seems to be entirely ignorant of the concept that the purpose of the law is, ostensibly, to help people (if the Tea Party doesn’t think it will help enough people, they could always pitch a Bill that would help more people . . .). While small government conservatives and anti-Obama activists and groups have been spitting vitriol trying to get the law overturned, I have been on the other end of the spectrum and I found the way for the Right Wing to get what it wants, though it comes at great cost. The Affordable Care Act is Unconstitutional, but the Republicans and Tea Party activists don’t want to pursue the concept of how it is Unconstitutional because it will finally expose how they influence the government and has the potential to lead to legislation that would gut the way politicians are financially influenced.

The Affordable Care Act is Unconstitutional because it violates my First Amendment right to free speech (and yours!).

My Bias

It behooves me to admit my bias right up front. I am a liberal. Unlike what anti-Obama detractors would call a “liberal” (and those of us on the left call a “Centrist”), I am an actual liberal. My fundamental issue with health care in the United States is that it is unaffordable, too-frequently for profit, and it is administered in an entirely hypocritical way (i.e. as human beings we are told we have a fundamental right to our lives, but we either have to pay for it or are demonized for wanting to revoke our own existence – that’s not an inalienable right then!). If we are truly meant to have an inalienable Right To Life, then all healthcare should be free, equally-available, and an inherent right more than a business arrangement citizens are forced into.

As a true liberal, my goal for health care would have been universal health care through the simplest means possible: eliminating “over 65” from the Medicare law. Medicare is one of the most efficiently-run government programs and it is not for profit. To this day, I have absolutely no idea how Medicare has not been struck down as Unconstitutional on Fourteenth Amendment violations (the government is actively discriminating against everyone who is under 65 with the program!). But, if everyone in the United States was given Medicare where workers paid into the system and businesses paid into the system (cost of doing business here!), then all of the problems with the Affordable Care Act would be nullified.

How The Affordable Care Act Is Unconstitutional

As it stands, the Affordable Care Act is Unconstitutional as a First Amendment violation and the process is remarkably simple to illustrate. As an American citizen, I have the right to support any political party or individual that I see fit. I also have the right to exercise my free speech through the purchases I make. I have, as The West Wing pointed out in an early episode, an inherent right to wear a tacky looking tie as a matter of free speech. I could not be compelled by law to buy Coca-Cola products over Pepsi products as a matter of free speech, either. In fact, any law where a for-profit company like Coke or Pepsi was legislated with a demand that citizens buy the product would probably never make it onto the floor of Congress. As well, I could not be compelled by law to buy any soda pop; my right to Free Speech protects my right to dissent by not buying a product I do not like (and thus supporting a cause I do not believe in).

Yet, the Affordable Care Act is trying to make just such a mandate on a grosser scale. From this point forth, U.S. citizens are compelled to purchase health insurance. Health insurers are not non-profits, they are massive, billion-dollar a year business entities that have a responsibility to stockholders, not to patients they represent. Being forced to buy health insurance is tantamount to a law saying that every citizen who does not buy Coke, Pepsi or any other carbonated beverage, will be fined. That’s not much of a logical leap at all; health insurance is a product, produced by a for-profit company (or companies) and the U.S. government is compelling citizens to purchase that product.

The Constitutional violation, though, comes with the Free Speech argument. Personal preference, expressing opinions through how I spend my money, is free speech. I, for example, shop at small businesses whenever possible instead of the anti-union, low wage-paying, big box stores like Wal-Mart. I look at how gas companies spend money in order to avoid funding wars I disagree with or environmental policies contrary to my own.

Being compelled to purchase health insurance violates my ability to express my political beliefs accurately. In the 2012 election cycle, according to, both the Insurance and Health industries contributed more to the campaign of Mitt Romney and the Republicans than to the Democrats. In fact, the insurance industry out-donated to Romney just under three times as much as they donated to Obama. In addition to being a frustratingly stupid method of trying to gain health care for its citizens, the Affordable Care Act will be giving money directly to the industries who are influencing the politicians who want to repeal it. But, because I am now compelled to buy health insurance, I will be funding political candidates that I do not support (as I am neither a Republican, nor a Democrat). The Affordable Care Act is a coerced campaign contribution and that money is going largely to people who despise me and the ideals I hold.

How Do I Know My Money Is An Illegal Campaign Contribution

In accordance with the Affordable Care Act, my wife and I went onto the government Marketplace website earlier this week and we lined up our forced health insurance for next year. Both of us just started new jobs, both of us are kept by our employers at part time and we share a car and have craptastic credit ratings so a new car is not in our future, so we are unable to work more, earn more money, etc. In addition to being stymied that the Marketplace website takes into account none of our expenses – housing and food, an expense for us that just went up thanks to cut in food stamp funds (that’s $130 a month in food expenses that will come out of pocket starting next month!), car insurance, gasoline – we were frustrated that we were dollars over the limit to be covered by any government health care programs – Medicaid, Medicare (if legislation goes through actually expanding and funding it in our state).

So, we found the one insurance plan that we could afford and we did a budget. The $65/month health insurance we were forced to buy represents 100% of our disposable income. After budgeting for our apartment, car insurance, food, and gasoline for our car (as well as paying off the loan we just took out for our new tires so my wife does not die on the road on the bald tires she was forced to drive upon), our budget had $66 in it. Sixty-five of those dollars will now be going to our health insurance.

The thing is, our health insurance has copays and deductibles. What this means to me, and many other poor people, is simple: my wife and I are paying for insurance we will never be able to use. We are not getting health care of any kind; that would cost money on top of the $65/month we are forced to spend. Because we are not using the money for any form of treatment for ourselves (and believe me, we could use some whatwith her ventricular septal defect and my glasses that are based upon a fifteen year-old prescription!), our money is going into the operating expenses of the insurance company we are forced to spend money on . . . and there is no way to prove that our $65/month will not be going to fund political activities and candidates, especially ones I do not agree with.

Ergo, the ACA is Unconstitutional.

Sidebar: The Specious Counterargument

The most common response I have yet received to this argument is that if the ACA were struck down as Unconstitutional, then car insurance would have to be declared Unconstitutional by extension. This is an entirely specious argument as driving a car is a privilege, not an inherent right. In order to get a license, one must pass tests, exhibit skill, and make a conscious choice that they want to drive and assume the responsibility of driving and maintaining an automobile, with all of the consequences that entails. It is easy - especially in big cities - to make the conscious choice to not get licensed and thus avoid the fees of car insurance.

Conversely, the ACA is mandating a cost associated with the basic act of living. To be compelled to buy health insurance, one need only live long enough to reach legal age; one does not make a conscious decision to live to reach maturity to pay for health insurance. In the most simple terms, the ACA seeks to tax an inherent right, as opposed to a revokable privilege. The car insurance argument could not be further from the health care debate.

Why The Republicans Haven’t Mentioned This

More than the Democrats, the forces who stand to lose the most from this revelation are the Republicans, Conservatives and Tea Party members. Under the ruling Buckley v. Valeo, money was ruled equal to speech and that has been used as a loophole to campaign finance laws ever since. Regardless of whether or not one agrees with that ruling, it is currently the law of the land.

To expose the Affordable Care Act as Unconstitutional as a Free Speech violation, Republicans would either lose the precedent which has allowed them to bypass campaign finance laws through 527s (with a re-judgment of Buckley v. Valeo) or their giant contributors in the insurance and health fields would be dried up when citizens were no longer forced to spend money on a for-profit product that has funneled hundreds of millions of dollars into their coffers. The Reactionaries cannot have it both ways; if money equals speech, then being forced to pay for health insurance is being forced to pay for political speech that many might disagree with.

Either way, I can show damages, I can show a violation of my rights . . . any lawyers out there ready for a class action suit to crush health insurance and maybe help get citizens in the United States actual health care?

© 2013 W.L. Swarts. May not be reprinted without permission.
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