Over 2,000 Plaintiffs in Obamacare Lawsuit

Congressional candidate Kevin Calvey has filed a lawsuit against Obamacare and has already attracted over 2,000 plaintiffs.  This is different than the others that we have seen filed in that this is not a suit being filed by a group of attorneys general or the states themselves, but rather the People.

This lawsuit is filed on the grounds that Obamacare is a violation of the Commerce Clause; Article I Sections 2, 8, 9 and the Sixteenth Amendment; Tenth Amendment; Free Exercise Clause of the First Amendment; Equal Protection of the Fifth and Fourteenth Amendments; Due Process Clause of the Fifth Amendment; and Fourth Amendment.

This case makes some very good points, and most broad that I've seen.  It looks to be fairly thorough to me, but we'll have to see how it does in court.

Commerce Clause

The first complaint this case makes pertains to the lack of power enumerated to Congress to regulate economic inactivity.  This is addressed in paragaphs 24, 25, and 33.

24.

Imposing an individual health care coverage mandate upon United States residents who choose not to contract for health care coverage as set forth in the Act is not regulating economic activity.

25.

A mandate requiring private citizens, such as Plaintiffs, to purchase health care coverage pursuant to the Act is not an economic activity.

33.

Congress lacks authority under the Commerce Clause of the Constitution to force private citizens, including Plaintiffs, under penalty of federal law, to purchase health care coverage. Consequently, Congress lacked any authority in the first instance to pass the Act, specifically including the Act’s individual mandate for health care coverage.

Of course, the issue here is whether Congress has the power to regulate interstate economic inactivity under the Commerce Clause.  It is pretty cut and dry that they have the power to regulate economic activity.  However, there are cases going both ways here. 

United States v. Lopez and United States v. Morrison both provide precedent that Congress does not have the power to regulate economic inactivity.  In contrast, Wickard v. Filburn and Gonzalez v. Raich provide precedent that Congress does have the power to regulate economic inactivity.  A decision here will be rather difficult without overturning or severely limiting one set of caselaw.

Unconstitutional Tax

The next part of the case deals with the unconstitutionality of the tax assessed against those who do not obtain health insurance.  For those who haven't studied the Constitution (which is the vast majority of Americans), here is a quick refresher on the power of Congress to tax:

From Article I:

Section 2

"...direct taxes shall be apportioned..."

Section 8

"...all duties... shall be uniform throughout the United States..."

Section 9

"No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

Before you say, yes, I know that most supporters of this law and even Obama himself say that this law does not contain a tax.  However, the penalty assessed in the new law is referred to as a "tax penalty" and is enforced by the Internal Revenue Service.

Where the new law fails to pass muster here is that the tax penalty is a capitation tax directly imposed on citizens who violate the individual mandate and is not apportioned among the States in relation to the census population.  In addition, it is not a uniform tax.

This part of the case also deals with the Sixteenth Amendment.  To call the tax Constitutional under the Sixteenth Amendment would be quite the stretch.  The Sixteenth Amendment is what was ratified in 1913 to allow the federal government to collect income taxes without apportioning those receipts to the States.

Sixteenth Amendment to the United States Constitution

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

Obviously, this argument will hinge on what is defined as a source of income.  If the courts rule that by not paying the $2,000 per year for health insurance that you are effectively receiving additional income of $2,000, then the tax will pass the test of the Sixteenth Amendment.  However, I don't think that any judge will be stupid enough to stretch that far, but you never know.

Tenth Amendment

The Tenth Amendment issue in the case is also in conjunction with the violation of Article I Section 8 of Congress attempting to regulate interstate economic inactivity.

Tenth Amendment to the United States Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This part relies on a ruling of Congress not possessing an enumerated power to regulate economic inactivity.  If the courts find that Congress does indeed have said power, then this part of the case become moot.

Free Exercise

An interesting topic comes up in this case that I wasn't exactly expecting, but should have been.  This case makes the point that "By forcing Plaintiffs to contribute to the funding of abortion, the Act violates Plaintiff’s fundamental rights of conscience and the free exercise of religion protected by the First Amendment to the Constitution."  I'm not sure that this is in any other case, so feel free to correct me if I am wrong.

First Amendment to the United States Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

The argument here is that by using tax dollars to provide federal funding for abortions, the government is not allowing Christians and others who believe that abortion is the same as homicide to opt out of paying for abortions.  Therefore, the new healthcare law effective prohibits the free exercise of religion with respect to abortion funding.  (There are religious opt out provisions for new law in general, but you will still indirectly fund abortions.)

Equal Protection

The next part of the lawsuit deals with equal protection under the Fifth and Fourteenth Amendments.  It also ties into the previous section about Free Exercise.

There are a few arguments made here.  The first point that is made is that by allowing for exemptions for certain religious reasons, but not for anti-abortion reasons, the law violates equal protection.  But the following is the part that most interests me:

49.

By funding and benefiting certain special interest organizations, including unions, through tax exemptions and other mechanisms provided for in the Act based on their political viewpoints, which are favored by Congress and Defendants, and denying similar funding and benefits to other individuals and organizations that do not share similar viewpoints or favor with Congress and Defendants, Defendants have abused their federal authority in violation of the equal protection of the law guaranteed under the Fifth Amendment and Fourteenth Amendment.

50.

By providing for “earmarks,” or special interests expenditures, Congress and Defendants have abused their federal authority in violation of the equal protection of the law guaranteed under the Fifth Amendment and Fourteenth Amendment.

Feel free to let me know your opinion, but I believe that a ruling here may provide a precedent for later cases about earmarks in legislation.  In case you're unfamiliar with earmarks, or "pork" as conservative media likes to call it, it is money that is set aside in legislation to benefit a particular group, usually in the politician's district.  Most people believe earmarks are a bad thing until their area receives a lucrative deal, kind of like welfare.  Personally, I believe earmarks are bad.  Period.

Due Process

The lawsuit also finds fault in the new law through the Due Process clause of the Fifth Amendment.

Fifth Amendment to the United States Constitution

No person shall be... deprived of life, liberty, or property, without due process of law...

The lawsuit doesn't go into much detail about why it takes issue with the new law with respect to due process, so I think this part of the case will be really weak.  The lawsuit only mentions that requiring individuals to purchase health insurance or face a tax penalty violates due process, but it doesn't say why.  I'm pretty certain, though, that Calvey is looking at it in the same light as the Mississippi case.  The Mississippi case makes the point that "Plantiffs in this matter have the Constitutional right to be free from entering a private contract or an involuntary association."

Privacy

Fourth Amendment to the United States Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

This is actually what the Mississippi case is centered on, and I'm very glad to see it in the Oklahoma case.  The argument here is that by requiring American to enter into contracts with insurance companies where they are contractually obligated to disclose private and confidential information to third parties, the federal government is in effect forcing citizens to disclose private information or face a penalty.

Overall, I think this is a pretty thorough case.  I'm looking forward to seeing how it performs through the system.