- Feb 12, 2007
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Interesting argument against the constitutionality of the ObamaCare mandate based on privacy rights:
Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate, include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbarts website.
The 29-page complaint contains many legal arguments and case citations. As VC readers know, such extensive legal argument is not mandatory in a complaint, but is permissible. Much of the complaint consists of development of the argument that the power to regulate interstate commerce does not include the power to force people to purchase a product. A few items, however, are particularly notable.
....
In my view, the most interesting paragraph is this one:
"75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Acts individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congresss individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information."
Indeed, the insurance purchase mandate is considerably more intrusive than other purchase mandates which would become constitutional if the insurance mandate is upheld. For example, if Congress required that every family purchase a General Motors ACDelco automobile battery at least once every 5 years, the mandate would be financially burdensome, but would not necessarily require the disclosure of any private information. In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about ones lifeand making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.[/i]
The Volokh Conspiracy Blog Archive Health insurance mandate as a privacy right violation
The privacy issue may be the money shot to kill this Obamanation.
Where oh where is the ACLU?
Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate, include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbarts website.
The 29-page complaint contains many legal arguments and case citations. As VC readers know, such extensive legal argument is not mandatory in a complaint, but is permissible. Much of the complaint consists of development of the argument that the power to regulate interstate commerce does not include the power to force people to purchase a product. A few items, however, are particularly notable.
....
In my view, the most interesting paragraph is this one:
"75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Acts individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congresss individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information."
Indeed, the insurance purchase mandate is considerably more intrusive than other purchase mandates which would become constitutional if the insurance mandate is upheld. For example, if Congress required that every family purchase a General Motors ACDelco automobile battery at least once every 5 years, the mandate would be financially burdensome, but would not necessarily require the disclosure of any private information. In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about ones lifeand making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.[/i]
The Volokh Conspiracy Blog Archive Health insurance mandate as a privacy right violation
The privacy issue may be the money shot to kill this Obamanation.
Where oh where is the ACLU?
