The economic toll of the Affordable Care Act (ACA) has been drilled into our psyche over the past three years. Notwithstanding the quasi-legal single party seizure of one sixth of the nation’s economy, the hidden impact is the toll on our liberty. An infringement on our liberty that has not been greater since, well, the Patriot Act. The Patriot Act, according to liberals, was the greatest intrusion on our liberty, but is that accurate in comparison to the darling legislation of the left, the ACA?
The Patriot Act modified and enhanced a number of existing criminal statutes, such as: Electronic and Communications Privacy Act; Bank Secrecy Act; Money Laundering Act; Immigration and Nationality Act; and Foreign Intelligence and Surveillance Act (FISA). The result was an infringement of liberties protected by the Fourth, Fifth, and Sixth Amendments. On the other hand, the ACA did more than modify and enhance existing law, it rewrote health care law and regulation under the auspices of providing all Americans with affordable and quality health care. Our liberties under the First and Fourth Amendments have been put at risk while others suggest that the ACA infringes on several other Amendments. Additionally, the Act’s taxation scheme and myriad other regulations further erodes our liberties. On the surface, the ACA appears to have a greater impact.
The Patriot Act, in its attempt to stop criminal acts of terrorism, encroaches on liberties limiting unreasonable search and seizure (Fourth Amendment), criminal indictment, and protecting judicial process (Fifth and Sixth Amendments). Search and seizure overreach is manifest in the surveillance powers granted to the NSA. While the extent of the NSA surveillance was made worse under President Obama, equally unnerving is the extent of personal data and meta data that is publically available for purchase from data clearing centers. Data which would not require a warrant if a government entity, domestic or foreign, cared to purchase it. The Patriot Act also stretches the boundaries of indictment and judicial process as a result of enemy combatant detentions, or lack thereof. The drone strike program and ensuing debate puts this into perspective. As tough as it may be to swallow, we should pursue enemy combatant detention and judicial process akin to the 1993 World Trade Center bombings, in order to preserve limitations of government powers against citizens and preserve our constitutional protections – recall that the Tea Party, Christians, and conservatives were recently labeled extremists.
The ACA, in an attempt to provide access to health care insurance for 30-50 million Americans (note that is all the ACA does: provide access to insurance), goes straight after religious liberties (First Amendment) and overreaches on unreasonable search and seizure (Fourth Amendment). Notwithstanding the direct breach of these amendments, the taxation scheme and regulations are ripe for intruding on our liberty. The very conception of the plan coverages infringes on religious liberties, wherein Catholic institutions are prohibited from the free exercise thereof, by insisting that they provide coverage that goes against their tenets. There are documented cases that the personal data provided to obtain an approved policy can be shared with law enforcement and auditing authorities, without warrant. The emerging regulations are burdensome to the point of infringing on Life, Liberty, and the Pursuit of Happiness (the American dream). The regulatory cost burden to corporate entities, small business, and individuals is restricting the ability to achieve and be successful. Individual choice is restricted and life put in jeopardy due to insurance plan consolidation with unnecessary coverage for some and plan cancellations, respectively. Regulatory burdens on business will also cause this loss of choice, not to mention regulation without merit. Business compliance with the law is offsetting growth and hiring. Lastly, the taxation scheme of the ACA delivers a punitive burden on the public, especially those individuals receiving treatment under plans that were cancelled as a result of the ACA regulations.
It is plain to see that the two acts broach certain liberties. While there is support from both sides of the aisle to reign in the powers of the Patriot Act, the left considers the ACA irrevocable “settled law,” suggesting that its liberty stealing statutes and rules are without challenge. However, barring an act of Congress for a full repeal of the ACA, there may be a loop hole to allow legal challenge. The Supreme Court set limits to the commerce clause, but upheld the ACA on the grounds of Congress’ taxation powers, which is broader than the commerce clause as a regulatory power. Under Chief Justice Roberts’ opinion, the constitutionality of a tax may be open for legal challenge if an “exaction becomes so punitive that the taxing power does not authorize it.” In his opinion, he also assumes that under a punitive structure, rather than one of taxation, Congress would be troubled that it would create “outlaws” for noncompliance with the law. Under the same logic of assumption, could it not then be argued that Congress would not have created a law that would so endanger complying citizens, that they would be placed in jeopardy of life as a result of regulatory burdens that forced them off insured plans that were providing coverage for life threatening disease? For example, to be uninsured and pay the tax was not an option because of one’s current illness, yet the loss of insurance and increase in premiums and deductibles were an undue burden of the taxation scheme, such that the “exaction becomes so punitive that the taxing power does not authorize it.” Those ill and displaced persons have an opportunity to challenge the ACA under the cited upholding opinion of Chief Justice Roberts. Slate opined that Chief Justice Roberts brilliantly restricted the commerce clause in his opinion to uphold the ACA. Does Chief Justice Roberts also get the last laugh by telegraphing the means to overturn the ACA?
In the end, the rub is that the ACA restricts numerous liberties under the guise of helping Americans and not due to a tradeoff between liberty and security. If this is the new normal where liberty is lost not to one’s security but someone else’s benefit, then I want nothing to do with it! At least with the Patriot Act I get something in return and can assess whether my security is worth the loss of liberty. In terms of the ACA, I receive no benefit with the loss of liberty.
That’s where I stand. If I haven’t offended you, then I haven’t tried hard enough.