Journal einhverfr's Journal: Health Care Reform and the Decline of Due Process 3
My single largest concern with the health care reform bill here is that the law, if upheld, would severely damage some of our most important Constitutional rights as American citizens. These rights are codified in the 5th Amendment and protect us all from unfair prosecution by the government in two ways: by requiring that due process not be denied, and by prohibiting the government from requiring self-incrimination.
It's important to realize how this mandate works as opposed to, say, the mandate to be insured when you drive in this regard. The state cannot force you or anyone else to admit to a traffic infraction or misdemeanor, so the only way this can be enforced is to require proof of insurance to drive, and to write tickets when this is not present during a traffic stop. Nonetheless, at least in my state, this can be challenged in court if you have insurance but the proof of it was not in the car during the traffic stop.
Obviously this sort of enforcement measure doesn't work when requiring people to purchase health insurance. I suppose Congress could make visiting an emergency room without insurance to be a misdemeanor or even a felony but that would just discourage the uninsured from seeking medical help when it was necessary. Consequently, Congress attempted to do something that's unprecedented: require disclosure of non-violation as part of the tax code and penalize people appropriately. This is where things become problematic.
To be sure there's no problem with Congress deciding to raise everyone's taxes by 2.5% and then giving everyone a tax credit equivalent to the current penalty, but that's not equivalent to the current system. Instead, if you make over about 28000 USD/year, you pay 2.5% as a penalty but if you make less, you pay $695 as a flat penalty. This penalty is equivalent to that which is assessed when one is convicted of various misdemeanors. While I think it might be argued that the objection of folks making more than 28k per year might be shadows instead of substance, for those making less, I don't think the law is Constitutional because it imposes a fixed penalty, requiring self-incrimination and denying due process. This is hence a "fine of not less than" structure pretending to be a tax, requiring self-incrimination, and adjudicated to a standard that would be impermissible if assessing a federal misdemeanor. I believe that such would be adjudicated to a preponderance of evidence, which is the standard for civil cases, not criminal cases. There are ways this could bleed over into criminal cases as well.
If this is upheld as Constitutional, then it is not an understatement to say that this is as much a threat to American liberty as any part of the so-called war on terror. The threat here is substantial and one that I don't think most Americans on either side of the isle appreciate: by eroding due process in the name of a social interest, we make it possible to use the tax code to make an end-run around the 5th Amendment, rendering our valued Constitutional protections of limited value. It seems to me that both parties seem intent on destroying due process guarantees in one way or another when it suits them, and I am very concerned about the future of my country. Our last hope at present is with the courts.
If this is upheld as Constitutional, there's no reason why a state couldn't list a bunch of crimes and require self incrimination on tax forms. At that point we move ever closer to a society characterized by "show me the man and I'll find you the crime." This is not what I want for my country. And while I have policy concerns over a single payer system in this country, they do not rise to this level. Let's hope that the courts protect our rights not to self-incriminate, and to ensure we have due process when accused of not having health insurance that the government deems acceptable.
Great insight (Score:2)
I'm so happy to see you write about the real threat so clearly, without playing the left or right "house organs" - or the nail-raking "alternative' of Libertarian doctrinal position.
The game really is over, you know. The result that you see from this legislation is not the side consequence, but actually the intended objective and advancing "facts on the ground". I would not use the words "establish precedent" in the preceding quotation marks, because those words imply a formal process governed under the r
Re: (Score:2)
It's also worth noting that both political parties currently seem to see due process as an inconvenience to be done away with but for different reasons. Democrats seem to see due process as an inconvenience that gets in the way of social programs, while both parties are clearly on the bandwagon for eroding due process due to the threat of terrorism. Thus far the courts have been surprisingly decent here. I am hopeful that the courts will be likewise concerned here as well.