Tilting At Windmills

Washington State Attorney General Rob McKenna joined with 12 other state Attorneys General in a lawsuit claiming the recently passed Patient Protection and Affordable Care Act (big honkin' PDF) is unconstitutional. His site has a FAQ section about this and he states his reason for joining.

This lawsuit is about ensuring that the federal government does not exceed its authority in certain provisions of the health care bill, and that the citizens of the State of Washington are given the respect that the Constitution requires. The Tenth Amendment states that “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.” In addition, under the Commerce Clause, never before has Congress required individuals to purchase a specific product. The health care bill requires that all Americans purchase or obtain health insurance in private commerce, and allows the IRS to fine those who don’t.

In a news release on her site, Cathy McMorris Rodgers said:

“I agree with Attorney General Rob McKenna that the requirement for people to buy health insurance is an ‘unprecedented federal mandate’ that violates the commerce clause and the Tenth Amendment of the U.S. Constitution.”

The complaint filed in the case, 3:10-cv-00091-RV-EMT, within the U.S. District Court, Northern District of Florida is 23 pages long, but it immediately mentions that the Act exceeds 2400 pages as if that bears a significant legal ramification. Here are the alleged counts.

Count 1
55. Plaintiffs cannot afford the exorbitant and unfunded costs of participating
under the Act, but have no choice other than to participate.
56. The Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, §8; the Taxing and Spending Clause, id.; or any other provision of the Constitution.
57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States.
58. The Act violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.

Count 2
59. Plaintiffs reallege, adopt, and incorporate by reference paragraphs 1 through 53 above as though fully set forth herein.
60. The tax penalty on uninsured persons under the Act constitutes a capitation and a direct tax that is not apportioned among the states according to census data, thereby injuring the sovereign interests of Plaintiffs.
61. Said tax penalty applies without regard to property, profession, or any other circumstance, and is unrelated to any taxable event or activity. It is to be levied upon persons for their failure or refusal to do anything other than to exist and reside in the United States.
62. Said tax penalty violates article I, sections 2 and 9 of the Constitution of the United States. By its imposition of the penalty tax, and by the resulting coercion of many persons to enroll in Medicaid at a substantial cost to the Plaintiffs, the Act injures their interests as sovereigns vested with exclusive authority, except to the extent permitted to the federal government by the Constitution, to make all taxing decisions affecting their citizens and to confer a right upon persons in their states to make healthcare decisions without government interference. The tax penalty is unconstitutional on its face and cannot be applied constitutionally.

Count 3
63. Plaintiffs reallege, adopt, and incorporate by reference paragraphs 1
through 53 above as though fully set forth herein.
64. The Act forces citizens and residents to have healthcare coverage or pay a tax penalty. In effect, the Act compels said persons to have healthcare coverage, whether or not they wish to do so, or be subject to sanction. The Act thus compels persons to perform an affirmative act or incur a penalty, simply on the basis that they exist and reside in the United States.
65. The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment to the Constitution of the United States.
66. The tax penalty on uninsured persons under the Act unlawfully coerces persons to obtain healthcare coverage, thereby injuring the Plaintiffs’ fiscs, because many persons will be compelled to enroll in Medicaid at a substantial cost to Plaintiffs. As a result, the Act cannot be upheld under the Taxing and Spending Clause, Const. art. I, § 8.
67. In so coercing citizens and residents to have healthcare coverage, the Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under any provision of the Constitution.

Count 4
68. Plaintiffs reallege, adopt, and incorporate by reference paragraphs 1 through 53 above as though fully set forth herein.
69. There is an actual controversy of sufficient immediacy and concreteness relating to the legal rights and duties of the Plaintiffs and their legal relations with the Defendants to warrant relief under 28 U.S.C. § 2201.
70. The harm to the Plaintiffs as a direct result of the Act is sufficiently real and imminent to warrant the issuance of a conclusive declaratory judgment clarifying the legal relations of the parties.

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I have one point about this being an unprecedented federal mandate. For the last 35 years every paycheck on mine has had federally mandated monies taken out to pay for Social Security and Medicare.

McMorris Rodgers also states:

Those who are convicted of willfully evading the insurance requirement can be fined up to $100,000 and imprisoned for five years.

There's no mention of that in the lawsuit. I searched the 2407 page bill and found one mention of imprisonment.

(b) CRIMINAL PENALTIES.—Section 501 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1131) is amended—
(1) by inserting ‘‘(a)’’ before ‘‘Any person’’; and
(2) by adding at the end the following:
"(b) Any person that violates section 519 shall upon conviction be imprisoned not more than 10 years or fined under title 18, United States Code, or both.".

This is Section 501 of ERISA that's being amended.

Any person who willfully violates any provision of part 1 of this subtitle, or any regulation or order issued under any such provision, shall upon conviction be fined not more than $100,000 or imprisoned not more than 10 years, or both; except that in the case of such violation by a person not an individual, the fine imposed upon such person shall be a fine not exceeding $500,000

So the amendment added paragraph (b) which related to Section 519 of this act. Section 519 states:

"No person, in connection with a plan or other arrangement that is multiple employer welfare arrangement described in section 3(40), shall make a false statement or false representation of fact, knowing it to be false, in connection with the marketing or sale of such plan or arrangement, to any employee, any member of an employee organization, any beneficiary, any employer, any employee organization, the Secretary, or any State, or the representative or agent of any such person, State, or the Secretary, concerning—

(1) the financial condition or solvency of such plan or arrangement;
(2) the benefits provided by such plan or arrangement;
(3) the regulatory status of such plan or other arrangement under any Federal or State law governing collective bargaining, labor management relations, or intern union affairs; or
(4) the regulatory status of such plan or other arrangement regarding exemption from state regulatory authority under this Act.

This section shall not apply to any plan or arrangement that does not fall within the meaning of the term ‘multiple employer welfare arrangement’ under section 3(40)(A).".

Nothing there about anyone "willfully evading" health insurance being subject to imprisonment. She's pulling that out out of her backside.