Skip to comments.My Letter to the Texas Attorney General ...
Posted on 03/23/2010 11:13:33 AM PDT by Rurudyne
To the Honorable Greg Abbot, Attorney General of the State of Texas
I hope this day finds you and yours doing well.
My name is **** **** **** and I live in ******** *******, Texas.
I am writing you today because of a concern I have with any suit brought against the federal government's plan to 'reform' the heath insurance industry (which they have called 'health care reform').
My concern is that any arguments made should address a few points which, though you are certainly well aware of, I would like to bring up.
So if only on the basis that the "squeaky wheel gets the grease" ...
I will limit my statements in this letter to the proposed "fine" or "tax" that Persons or their employers will be made to pay if they do not have adequate health insurance as defined by either Congress or some federal official.
First off, if this is characterized as a "fine".
I would wish any arguments brought on this matter to stress the question of if the federal government can lawfully criminalize having 'inadequate insurance' at all.
I would remind you that Article 1:Section 8 or the Constitution does grant general legislative Power "in all Cases whatsoever" only in the instance of: "such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;".
I would also remind you that Article 4:Section 3 states in part: "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;".
So I will not maintain that the Congress may not criminalize having insurance which it deems inadequate for Residents of Washington D.C. or any Territory.
But the power to criminalize such a state of affairs among any of the several States is not lawful. This isn't news to you, of course, since even murder is not a matter of federal laws among the several States (though it would be in Washington D.C. or in a Territory).
So if this penalty is characterized as a "fine" I would wish any arguments brought against its legality to expressly emphasize that it is a fine for which Congress possesses no lawful power to criminalize the 'behavior'.
In addition to this I would like to see the issue of access to federal lands such as Courthouses or other government buildings ... and indeed the whole of Washington D.C. or any Territory by the residents of any State may not be limited or restricted to only those with 'adequate insurance'. For this I would point to Corfield v Coryell where Associate Justice Bushrod Washington, while considering what are the Privileges and Immunities of the People, expressly stated: "The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state;".
Here I would bring up the logical applicability to the federal of the Privileges and Immunities addressed by Justice Washington.
I am well aware that it is now considered a radical view that Article 4:Section 2:Clause 1 meant to obligate the several States to respect such English common law Privileges and Immunities as were known in 1776/1789 ... this despite it was clearly NOT considered thus by the Marshall Court (or else one could well imagine that Chief Justice Marshall would have addressed any controversy or impropriety in his friend's opinion delivered as Circuit Justice rather than being issued from the whole Court). It goes without saying that I am in agreement with Justice Washington and will also assert that the main reason to so constrain and misconstruct A4:S2:C1 as is the current fashion was so that the several States might be freed to disparage English common law Privileges and Immunities if they so wished.
But how would these be applicable to the federal?
Here I would point out that the 9th Amendment makes reference to rights which are the "others retained by the people." At that time there was no other body of rights under Laws which were known among the several States and common to all of the several States save those that had been known under English common law. Thus the meaning of A4:S2:C1 completely aside it is, at least to me, an inescapable conclusion that this selfsame Body of Privileges and Immunities which were deemed "more tedious than difficult to enumerate" at that time are those which the 9th Amendment is in reference to.
Here the preamble of the Bill of Rights may be deemed instructive as to the intention of this Article: "The conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution."
It seems an unremarkable thing to me that the legislatures of the several States should desire the federal to be incapable of arbitrarily disparaging the very free System of English Laws whose retention, as much as it was possible, was in no small measure a goal of independence. And while the written Constitution may have replaced the unwritten for what should constitute lawful governance and the Power of a Sovereign to alter that Constitution limited within the amendment process and reserved to the several States or the people the body of Privileges and Immunities found within that free System of English Laws were very much the thing in and of themselves.
Thus for a federal government that was by intention to be fundamentally limited to few and defined power to assert that the 9th Amendment should hold it responsible to respect our Privileges and Immunities is a much less radical proposition than to say that the several States should too.
Thus for any Resident of a State to be restrained or otherwise penalized for having 'inadequate insurance' when entering into, passing through or temporarily residing in such places as Washington D.C. or a Territory or even a federal office would constitute a disparagement of the rights that Justice Washington spoke of.
Taken as a whole, these points (if only by themselves) would seem to draw the ability of the Congress to levy a "fine" on those living among the several States into extreme question.
Next I will address if this is characterized as a "tax".
Leaving out any discussion of our common law right to "an exemption from higher taxes or impositions than are paid by the other citizens" as per Justice Washington (and applicable to the federal as outlined above and which should make it unlawful to tax one person arbitrarily more than another because, in this instance, they do not do something) I will jump in to question if the Reason to Levy a Tax is really immaterial to the lawfulness of the tax.
By this I mean that the federal government has delegated Power to levy Taxes for different causes (income as well as engaging in certain forms of economic activities) and that this Power has become nearly general since the adoption of the 16th Amendment.
But to be taxed because you do not buy a certain product is neither an income tax levied because of income earned nor a tax on some form of economic activity such as manufacture or buying. It is properly a "non-sales tax" ... a tax levied because of economic inactivity.
How it is collected should be immaterial if why it is collected is in and of itself improper and illegal and there is no delegated power to collect taxes based on what people do not do (you might as well go about assessing 'taxes' because someone does not inherit enough should one of their close relatives pass on).
I would very much like this point to be addressed in any arguments made.
Even if it is called a "fine" I believe this aspect may be important if the IRS is the agency used to administer it (though how they will do so and offer due process is beyond me).
Thank you, Mr.Abbott, very much for your time. Here is hoping that this monstrosity may go down in flames and soon. I would also greatly appreciate any communications and especially and constructive criticism or suggestions in response to this letter.
**** **** ****
If these seem good point to folks in other States that are challenging Obamacare then please feel free to bring them up with your own State AGs.
I was about to ask if I could use it, thank you so much!
Abbott is one of us! He left a robo call on my home phone yesterday and said to contact him with any questions or concers that we have... I will be using your letter. Thanks
Forgot to mention, great letter.
ping for later