The Health Reform (or Deform) is Unconstitutional: a 2009 Introduction

That the health insurance law being debated right now is unconstitutional will become obvious in the coming years, when the courts are deluged with suits by damaged parties in search of relief, and when at least several dozen separate, detailed legal arguments are made that the law is unconstitutional, not all of which could possibly be incorrect. I mean, where there is a huge amount of smoke, there is a fire or something very close to a fire, I can assure you.

This was an essay I wrote in less than one hour flat in response to someone asking about the subject on Common Dreams. I almost never write an essay that quickly. The only time I write that quickly is when I am literally 100% convinced that what I am writing is true and correct in every way....

Well it obviously is unconstitutional since it violates the spirit and, indeed, the basic reason for the Constitution and thus why the US broke off from England: there shall be no more arbitrary laws, taxes, and regulations promulgated from on high (by the King or Queen of England back in those days) without true representation. Technically, though, many revolutionaries would have wanted to break off from England even if the English monarchy had provided a democracy and full representation for the colonials.

This law is obviously unconstitutional in a very fundamental sense. It reestablishes exactly what the Revolution and the Constitution banned, which is subjection to taxation, laws, and regulations without due process and without real representation. The executives and employees of the health insurance companies are foisted upon the people as their health care representatives by this law. The obvious problem is, these are private sector, profit seeking individuals. These health insurance people can not be voted out of office. Their objective and their only duty is to make more money for themselves and for their shareholders. They have no true legal duty or even moral responsibility to make sure you get the health care you might need. Whereas by contrast, in other countries, Government officials operating community-based health systems are legally and morally responsible for the health of the tax paying citizens.

The health insurance executives and employees can not even be exposed in the media as incompetent the way government officials can and often are. They can be UNOFFICIALLY exposed as incompetent at lower traffic internet sites, but the health insurance executives and employees can not be officially and authoritatively exposed as incompetent in the largest media outlets which, like it or not, are the ones that are considered to have the most credibility, and also the most power to change things, in the current right wing US system.

Moreover, the representation in the current US system, as most people here know, is a fake representation. For one thing, there is literally no representation other than right of center representation. Workers and non-right-wingers obviously have essentially no real representation in the US system since roughly 1980.

While essentially all reputable countries in the World, from roughly 1920 to 2000, established real representation for non-right-wingers, the US went in the opposite direction after 1980 if not before that, and eliminated representation for them.

Whether someone has or does not have due process is a major constitutional standard that is ubiquitous throughout the Constitution. The lack of due process in the health care deform would be taking away most of the liberty of people to decide how to arrange for their health care needs. People are funneled into this or that mechanism based on their income and on certain status aspects closely related to income, and they literally have no choice in this regard. (They may have trivial choices within a quite narrow range of choice.)

The health care mechanisms themselves are widely disparate, up to and including very different survival rates. If your income is such and such you are forced into this health care with this survival rate. If your income is this other amount, you are forced into this other health care, with this other survival rate, and which is totally different from what the guy with the other income gets.

Then since there are a lot of regressive taxation provisions where either (a) the money goes to a private for profit company instead of a community-based government and (b) the money goes to the government, PAID AS A PENALTY BY PEOPLE WHO WILL BE LEFT BEHIND WITHOUT HEALTH CARE, but is an extremely regressive penalty against those who literally can not comply, and also against some who will refuse to comply with losing their liberty to arrange for their health care without excessive and/or without irrational interference by a toxic combination of government authority and greedy and incompetent health insurance corporations.

So in summary this new law is like a snake pit of unconstitutional aspects and provisions; there must be dozens. Probably most of these numerous unconstitutional aspects and provisions will be litigated for literally decades to come, up to and including at the Supreme Court.

But you must remember about the courts:

(a) Just because something is unconstitutional does not mean that it will be ruled unconstitutional. There are "practical" (right of center) political and economics aspects that can (and will likely often in this case) trump the constitutionality. The bottom line in this regard is that the powers that be have taken the gloves off and they are clearly bent on impoverishing the general population from either lack of jobs, forced expenditure on health insurance, or both.

(b) Even if this or that specific thing is eventually ruled unconstitutional, it may be only a minor provision ruled thus. Or it may be a big provision, but you or I may be dead or almost dead, and bankrupt due to paying the health insurance execs years earlier than when that finally happens. The Supreme Court will not give refunds (or retroactive health status improvements) to every last person who was harmed by an unconstitutional law while it was in effect.

(c) In the relatively rare case where a law is plainly ruled unconstitutional, the government that passed it often makes clever cosmetic changes which do not actually make it constitutional, but then the Supreme Court will nevertheless rule it as now constitutional, as a kind of good faith gesture among and between the very top public sector elites in the country.

Note: this is merely a very basic outline of what is truly a massive subject. Much is left out here, and there are without a doubt unconstitutional aspects that I am not yet aware of (yet). But this very quick expose is good enough for a comment before the damn thing has even officially passed!

The above was written in response to a comment and in response to this article on Common Dreams.