of the Patient Protection & Affordable Care Act (PPACA) are plainly
vulnerable to certain constitutional challenges not raised in the wave
of civil litigation that followed the PPACA's enactment. Other aspects,
while they are faults in the PPACA or the enforcement we've been told
to expect, are exposed only through a familiarity with other constraints
on agency authority imposed by statute. Regardless, vulnerabilities in
both categories remain untouched.
For the purposes of #1, 2, and 3 it is important to understand a little more about individual right than everyone else, apparently. Truly simple notions about constitutional rights of the individual, as you'll see, literally dismember the individual mandate that you pay and contract for health insurance. In the litigation mounted by the many state attorneys general and organizations who've challenged the PPACA in any way, the right of the individual was only vaguely the nature of any cause of action. The main focus of most of the litigation was the sovereignty of the fifty states (10th Amdt.) and how the FED lacks the authority to tell a state what to do.
Here's what nobody's hit upon as an argument against the individual mandate; the constitutional right to contract, property, and to associate. Yes, you have these rights. BUT DID YOU KNOW that with every right comes a concomitant right against compulsory exercise? When you purchase health insurance you're paying the profits to the stockholders and partners, to say nothing of your contributions to the provider's political entanglements through your premiums. Can you be forced to pay the profits of a private company, by gov't, by anybody? That's terrible, but posed through the expression of a constitutional challenge it sounds like this:
1. Association - You have the 1st Amdt. right against forced association. The gov't might at times have reasons to require personal contact of you, but no private entity has such dominion or propriety over your time or attention. But can the gov't require you to associate with a private third party, or does the 1st Amdt. secure to you a right against compulsory exercise of your right to associate? This is known as your "right against forced association." You have the absolute right to choose who you do and do not associate with, and the gov't can claim no authority or influence as a matter of official right of any nature. The individual mandate violates your right against forced association with a private entity not of your choosing.
2. Contract - Separate from the right to property is the right to form contracts to acquire property rights from, or to provide property to, another person. Contracts are a way to frame property rights between persons when they seek to interact in trade or in commercial transactions, big and small. If you have the constitutional right to contract, which you indeed do, don't you also have the right against forced contract[ing]? Yes. The individual mandate violates your right against forced contract with a private entity.3. Property - Rights to property is the right to acquire, enjoy, and dispose of property in any legal way. You have those Federal Reserve Notes (digital numbers in a bank account perhaps) and they are your property. If you have rights to property in those FRNs, can you be forced to spend them, thus exercising your right to legally dispose of your property and to other acquire property (health insurance) from a private entity? Of course not. The individual mandate violates your right against forced enjoyment of property.
It's when you put your rights in the mirror that a new arena of challenges, individual rights, opens up against the PPACA. But here's another constitutional challenge that addresses the penalty imposed upon those American's whose tax returns disclose that they failed to maintain health insurance during the taxable year.
4. A tax on rights - As we learned above, when you don't purchase health insurance you're exercising your rights to associate, to contract, and to property (against compulsory exercise). However, for exercising these rights by not obeying the individual mandate to get insurance, a penalty will be assessed against you, a penalty the Supreme Court said is a tax; you've been taxed for exercising your rights. Can gov't levy a tax upon your exercise of a right? No. Murdock v. Pennsylvania is a 1943 Supreme Court decision that's been cited in no fewer than ninety decisions since, and from those cases you'll gain the understanding that the exercise of a right cannot be prohibited, licensed, unreasonably impeded, criminalized, penalized, or . . . taxed. Open that link and read those decisions, already bold and italicized in pertinent part for your convenience. The penalty for not purchasing health insurance or for not maintaining it is a tax upon your rights to associate, to contract, and to property, and is therefore is an unlawful taking and violation of your rights to due process.
Tax aspects: (Read this first)
5. Social Security - Half of the provisions of the PPACA are amendments to the Social Security Act of 1935. Has Social Security ever even applied to Americans, to you? No. After reading the page linked directly above, how do you reach any other conclusion? If you agree, can you ignore the half of the PPACA that was added to the SS Act of 1935?
Also on the page linked directly above:
6. Tax Code ch.1 - Approximately 1/6th of the PPACA is amendments to 26 USC Chapter 1 (Tax Code ch.1). If you feel you can ignore Social Security provisions, which are in Tax Code ch.2, 21, and 23, you are left to deal only with Tax Code ch.1 and the graduated income imposed by § 1 and its infamous brackets. Unlike SS chapters, ch.1 does not identify Americans as a subject of the tax like Congress did in SS chapters with citizens of the US possessions, so the Treasury Secretary wrote a regulation to supposedly allow the application of the Tax Code to Americans. However, the 16th Amdt. allows only Congress to "lay and collect" income taxes; it has to be a statute. This tax violates the 16th Amdt. because it's imposed solely through the promulgation of 26 CFR 1.1-1. Can you simply ignore the provisions of the PPACA enacted as amendments to Tax Code ch.1?
Extra medicare tax on high income wage earners under Social Security provision 26 USC § 3101(b)(2):
Even if the defects described above did not exist, and if you were subject o Social Security provisions, there's still this one relating to high income earners.
7. Tax on high earning employee - Over $200k in compensation for employment (over $250k for joint return) wins the employee upwards of 4-5% extra in taxes. However, look closely at the language of § 3101(b)(2) and compare it to the language of § 3101(a) and (b)(1). Notice that (b)(2) is a tax imposed on the employee, while (a) and (b)(1) are taxes on "income"; can Congress do that? Why would an employee be taxable? The (b)(2) tax may be based on the amount of wages received (salaries, etc.), but it clearly is not imposed on the income, so it IS NOT an income tax. What exactly is it that puts an employee into one of Congress' categories of permissible taxation?
An employee is not gross income so we first exclude the 16th Amdt. to the US Constitution. The tax on the employee is undoubtedly imposed directly on the individual regardless of whether they've traveled or transacted in interstate commerce, and this raises a great red flag to keep in sight. However, ask first whether the employee's done more than merely exercised a right or rights by seeking, accepting, and rendering services in employment. Obviously, by becoming and functioning as an employee for another person you've done nothing but exercised rights to associate, to contract and to property. What does the Murdock compilation say about the taxation of rights? How can this high earning employee avoid this tax and still exercise the right to do the job that pay the high salary or wage? The extra medicare tax on high earning employees is an unlawful taking and violated your rights to due process.