From the same Department of Justice that has given us operation Fast and Furious, we now have a new twist on our (disappearing) right to petition the government for redress of our grievances.  In classic “heads I win, tails you lose” style, the Justice Department is now arguing that if you protect your medical privacy by refusing to comply with the Individual Mandate, you can’t sue them.  Oh, you’ll still have to pay a fine, though.

As some of you may know, our case here in Mississippi is unique in that we are using the Supreme Court’s ruling in Roe v. Wade (and other medical privacy rights cases) to argue that Obamacare is unconstitutional.  Part of our reasoning is that the Individual Mandate forces individuals to contract with health insurance companies, which then in turn gather reams of highly confidential medical information from us without our consent.  We make the point that even if health insurers suddenly stopped gathering our past medical history when we apply for coverage (and there is nothing to indicate that this practice will stop), the fact remains that health insurers absolutely must gather treatment information for billing purposes.

For example, if you are concerned that you might have contracted a disease and go in for a blood test, that information will be sent to your insurer for billing purposes.  Even if you try to pay for that separately, your insurer will still gather that information.  Given that inadvertent disclosures of such information is a fairly common occurrence, you can count on innumerable instances of harmful public disclosures of private medical information to result.

The feds, of course, see it differently.  Still, I did not expect this argument:

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This past Monday, we trained our guns on the SS Obamacare; we aimed for the waterline.  The smoke hasn’t yet cleared, but we’re pretty sure it’s taking on water in a big way.  Our case attacking the constitutionality of Obamacare is in the federal District Court for the Southern District of Mississippi.  The government filed a motion to have our case dismissed, and yesterday we filed our response, which can be found here:  Response to Government’s Motion to Dismiss

Judge Keith Starret will now have to decide many issues, including whether the individual mandate is a tax or a penalty.   On October 14, Florida’s Attorney General received a powerful ruling in his state’s attack on the Patient Protection and Affordable Care Act (PPACA) from the federal District Court for the Northern District of Florida.  The opinion in that case says that the “individual mandate” is a penalty, not a tax.  That ruling is vital, because the Constitution gives Congress a great deal of power when it comes to taxing us, but not nearly so much when it comes to penalizing us.  There’s also a very old statute called the Anti-Injunction Act that the government is using as a defense, which only applies to lawsuits against taxes.

In short, the government is saying “we win because this is a tax.”  The only problem is that the mandate is quite clearly not a tax.  The individual mandate is simply a command by our government that each individual who does not have health insurance coverage go out and buy it, whether he or she wants it or not.  This dictate is enforced with a penalty — either buy the insurance, or face the penalty.  Congress specifically called this provision a “penalty” eighteen different times in Section 5000A alone; not one time in over 2,700 pages did Congress ever refer to it as a “tax.”   Even President Obama has insisted that the individual mandate is not a tax.

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Mississippi State Senator Chris McDaniel and I have filed a class action lawsuit today, Good Friday 2010, challenging the constitutionality of the Patient Protection and Affordable Care Act, also known as “ObamaCare” and a variety of other less polite euphemisms.

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. As our Complaint states:

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