Yesterday’s inbox contained a political e-mail message forwarded by my girlfriend’s parents. They’re not especially political people; their sensibilities (to the extent they’ll even discuss them) tend toward a somewhat mushy moderate conservatism, the kind of folks who instinctively vote Republican, even though the party’s center of gravity has moved far away from them. Indeed, they even said as much in the forwarded message—”you’re much more interested in politics than either of us”—yet they invited a response, practically asking for an informed rebuttal even as they implicitly treated the viral message as credible and worthy of attention.
Which, once I read it, was really hard to believe.
This is the message they forwarded, word for word:
The Truth About the Health Care Bills
Michael Connelly, Ret. Constitutional Attorney
Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.
To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.
The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.
However, as scary as all of that is, it just scratches the surface. In fact, I have concluded that this legislation really has no intention of providing affordable health care choices. Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.
The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government. The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own. The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with. I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care.
This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information, your personal financial information, and the information of your employer, physician, and hospital. All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.
If you decide not to have healthcare insurance or if you have private insurance that is not deemed “acceptable” to the “Health Choices Administrator” appointed by Obama there will be a tax imposed on you. It is called a “tax” instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the “due process of law.
So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn’t stop there though. The 9th Amendment that provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;” The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to control.
I could write many more pages about this legislation, but I think you get the idea. This is not about health care; it is about seizing power and limiting rights. Article 6 of the Constitution requires the members of both houses of Congress to “be bound by oath or affirmation” to support the Constitution. If I was a member of Congress I would not be able to vote for this legislation or anything like it without feeling I was violating that sacred oath or affirmation. If I voted for it anyway I would hope the American people would hold me accountable.
For those who might doubt the nature of this threat I suggest they consult the source, the U.S. Constitution, and Bill of Rights. There you can see exactly what we are about to have taken from us.
Constitutional Law Instructor
AFTER READING THIS, PLEASE FORWARD… if you don’t care about our constitution, or our rights under it, just do nothing. WE MUST HOLD CONGRESS ACCOUNTABLE BEFORE IT IS TOO LATE.
Unlike many of these viral messages, this one at least can be sourced to an actual author. I seem to have come a bit late to the game, since the piece first appeared on Connelly’s blog last August (during the height of the Tea Party furor), but it has evidently been making the rounds ever since.
Because I’m an incurable political junkie and can’t resist a challenge, I took the time to respond. In an attempt to leverage the time and effort expended, I’m sharing that response here. To wit:
Interesting piece. Doing a little quick due diligence online, I see that Connelly first wrote this last August, so it’s worth noting that the version of HR 3200 he writes about is not identical to the version that ultimately passed the House, nor to the health care bill currently being debated in the Senate, much less to whatever version ultimately emerges from a conference committee. However, as Connelly continues to make more-or-less identical arguments on his web site as recently as three weeks ago, it’s fair to say he’s not concerned about those subtleties.
Connelly doesn’t go out of his way to make a particularly credible argument, as he doesn’t cite any specific provisions of the bill nor any specific constitutional precedent. Nor does he come across as particularly credible in his own right: the resume on his web site reveals that he teaches law not at any accredited institution but rather for an online service called “ed2go.com,” and that he spent 18 years Of Counsel at the U.S. Justice Foundation, an organization so right-wing that it makes the Federalist Society look moderate (e.g., it favors legalizing political assassinations). And this essay has been reposted several times as the starting point for comment threads at SodaHead.com, the sort of site which features pieces pushing long-discredited rumors about Obama’s birth certificate and H1N1 flu conspiracies.
Of course, Connelly doesn’t claim to be an unbiased analyst to begin with. And it’s worth looking at a few of his claims in greater detail, if only to examine how easily such misleading interpretations of law and policy can spread.
Connelly seems primarily concerned with arguing that the current version of health care reform (hereafter HCR) is unconstitutional (i.e., asking “CAN Congress do this?”), although he often slips into criticizing the idea on policy grounds (i.e., “SHOULD Congress do this?”). Let’s take the larger argument first.
He asserts that “Congress doesn’t have any authority” to legislate HCR, that it undermines the balance of power with “the most massive transfer of power to the Executive Branch… that has ever occurred,” and that “three of those pesky amendments that the far left hate so much, out of the original ten in the Bill of Rights… are effectively nullified by this law.” (That last cheap shot is of course a complete ad hominem, since insofar as it’s possible to map their politics at all most civil libertarians tend to be left of center, but never mind that.) In particular he claims that the law violates the 3rd, 4th, and 5th Amendments, and then goes on to invoke the 9th and 10th as well. So, one by one:
The mention of the 3rd is just bizarre—that’s the one about quartering soldiers. He seems to bring it up only to assert that HCR undermines the right of privacy… which is interesting, since the right of privacy is precisely the kind of unenumerated right that conservative strict constructionists (of the sort who are circulating Connelly’s essay) tend to disdain. It was first established in 1965’s Griswold v. Connecticut (striking down bans on contraception, under reasoning that at most drew tangential analogies to the 3rd Amendment), a case they dislike because it served as precedent for 1973’s Roe v. Wade (striking down bans on abortion) and 2003’s Lawrence v. Texas (striking down bans on gay sex).
The 4th Amendment pertains to unreasonable search and seizure, which Connelly claims applies to HCR’s use of private medical information. I agree, for what it’s worth, that unauthorized access to private information (whether by government or private parties) is a legitimate problem. However, where medical information is concerned, access to same is already tightly constrained under the HIPAA law of 1996, revised privacy provisions of which have been in effect since 2003, which HCR does not alter. Electronic medical record-keeping is expanding by leaps and bounds every year (understandable given its many advantages), and there is some potential for abuse there, but it’s already safeguarded by law, and certainly there’s no reason to believe that public officials would be any less responsible with it than private insurance corporations.
(As an aside, for someone who claims to be concerned about expanses of executive power and violations of the 4th Amendment, it’s interesting that Connelly has no writings online that I can find criticizing the Patriot Act, the Bush administration’s violations of FISA law, “unitary executive” theory, or any related issues. All else being equal, exercises of executive power are certainly safer if they arise from open and public debate and deliberation by the legislature, as with HCR, rather than being undertaken in secret, without legislative oversight, based on novel legal theories drawn up in classified memos. But I digress.)
When it comes to the 5th Amendment he’s referring to the “takings clause,” a favorite of right-wing legal theorists which, however, simply doesn’t apply here. A government taking of property from an individual might run afoul of that, but a tax penalty applicable to everyone in general, as here, doesn’t.
The 9th and 10th seem to be thrown in for no particular reason at all. As a lawyer, he surely knows that the 9th is understood by everyone from Laurence Tribe on the left to Antonin Scalia on the right to be boilerplate that confers no substantive rights, merely acknowledging that certain unenumerated rights may later be protected by law—a position which could just as easily be used to support HCR. The 10th (concerning powers neither delegated nor prohibited) is even emptier; the relevant precedent, from 1941, reiterates that it is merely “a truism that all is retained which has not been surrendered,” and it is almost never invoked in case law. Only a diehard fringe pretends otherwise.
As to the larger argument about Congressional authority, it’s nowhere near as sweeping as he claims. The only really controversial bit is the “individual mandate” to carry health insurance coverage, which a few conservative legal theorists have argued might be struck down <http://snipurl.com/tpk8w>. However, by far the consensus view among legal scholars is that it’s well within the bounds of legislative authority, according to 70+ years of precedent concerning the Commerce Clause, the Necessary and Proper Clause, and the Taxing Power. To be sure, there’s a radical cohort of right-wing theorists who’d like to overturn all of that and return to the pre-1930s era of “substantive economic due process,” the kind of approach that prevented Congress from banning child labor, imposing minimum wages, or protecting collective bargaining… but that’s not likely to happen, even in today’s conservative federal courts.
So what’s left? Mostly just Connelly’s insistence that HCR is A Bad Idea as a matter of policy. In fact, where the individual mandate is concerned, I’d pretty much agree with that. At least it’s not punitive: there’s no criminal penalty for not carrying coverage, merely a modest surtax that applies to anyone not covered. Nevertheless, it’s objectionable on grounds both principled and pragmatic to force citizens to become a captive market for the private insurance industry. The industry provides no useful services, yet it’s inserted itself as a parasitical middleman, a gatekeeper on peoples’ access to care. The industry is also entirely responsible for the runaway costs, treatment restrictions, and related problems that have driven us to this crisis in the first place. And health care simply isn’t a “rational market” in economic terms—not only are there huge information imbalances, but health care is a non-optional commodity when you need it, so there’s no real bargaining leverage for customers. Thus, handing the industry a captive market of millions of new customers (even if accompanied with a few new regulations on coverage), without some serious competition from the public sector, is in no way, shape, or form going to ensure that people have access to decent, affordable coverage.
The best solution would of course be a single payer system, which is what Medicare is for seniors, and what works so effectively (better outcomes for lower costs) in Canada and most other western countries. (Ironically, it would also completely sidestep the constitutional questions about an individual mandate.) Short of that, however, a “public option” that merely competes with private insurers is a fallback position at best. In fact, I’d argue that failing to provide a public option (which is currently getting squeezed out of the Senate bill) is an outright abdication of Congress’s responsibility. Medicare and Medicaid have low overhead and consistently high patient satisfaction; private health insurance has the exact opposite; and as a matter of simple economics expanding the risk pool to cover everyone and capture economies of scale makes perfect sense. So passing a bill that ignores all of those benefits and instead leaves us to the mercies of an industry that can’t provide any of them is the height of irresponsibility. (But then, I don’t have industry lobbyists writing me large checks to convince me otherwise.) I tend to agree with the analysts who say we’d be better off with no reform at all at that point.
Of course, Connelly disagrees with my reasoning on all of the above. He instead offers up scare tactics, slippery slope fallacies, and a general parade of horrors. In particular:
Rationing. Of course, any time the supply of a service falls shy of the demand, as is inevitable with health care, there will be “rationing” of some sort. Right now it happens on the basis of “ability to pay”—people who lack coverage, or have coverage that gets rescinded when claims come up, get the short end of the stick. (More than one in five private health insurance claims in this country is denied.) Rationing it on the basis of medical need and effectiveness of treatment would make a lot more sense. There is, indeed, a provision in the House bill that would establish a panel of experts to evaluate the effectiveness of different treatments. There is not, however, anything that would ration care based on some bureaucratic evaluation of what your life is worth, nor based on “classes of citizens,” despite Connolly’s insinuation to the contrary. (Nor is there any such provision in the UK’s National Health Service, despite the risible claims concerning Stephen Hawking in last summer’s infamous Investor’s Business Daily editorial. <http://snipurl.com/tpkyb>) Nor is there anything that would interfere with one’s choice of doctors (although private insurers already do that anyway), nor anything that would increase waiting times for appointments (although private insurers also do that).
Undocumented immigrants. Connelly claims that the bill provides “free health care for illegal immigrants.” This is flat-out false. In fact, Section 246 on page 143 of the bill [pdf] explicitly says, “NO FEDERAL PAYMENT FOR UNDOCUMENTED ALIENS … Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States.” (Of course, this provision was added for strictly political reasons, as a response to a certain strain of reactionary nativism. On economic policy grounds it’s foolish. After all, undocumented immigrants still have health-care needs, and even if uninsured still have a legally guaranteed right to emergency care, just like everyone else in this country, which is still ultimately paid for by tax dollars… in the end costing us more than it would just to provide everyone with preventive coverage.)
Free abortion services. Well, abortion is legal and lots of health insurance policies cover it now. Nothing new about that, nothing wrong with it, and it should continue to be an option in the new “insurance exchanges.” Ironically, though, the recent amendments seeking to prevent this actually come closer than anything else to meeting Connelly’s largest claim, namely:
A government-run system. The “government takeover” sound bite is certainly widespread at this point. There is no truth to it, however. There’s nothing in the bill that would let government (as opposed to corporate) bureaucrats interfere with your own or your doctor’s medical decisions (except for the abovementioned abortion amendment), and certainly nothing that would force providers to work for the government. Nor is there anything that would “force private insurance companies out of business”… in fact, Congress has been bending over backward to ensure exactly the opposite. That’s a shame, actually, for reasons I’ve already outlined. I have no idea why Connelly is more concerned with preserving an industry that produces nothing (except pointless suffering, countless bankruptcies and avoidable deaths, and obscene profits) over the real needs of actual human beings.
Seriously: he claims that eventually “hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled by the government.” Well, right now those things are all strictly controlled (for those “lucky” enough to have private coverage) by corporations. Nameless bureaucrats we can’t hold accountable or vote out of office, but who know that their continued employment depends on how many claims they can deny. How is that anything worth preserving?
What it comes down to is that almost everything in this essay is a deliberate deception or an outright lie, and what remains is beholden to a paranoid anti-government, pro-corporate ideology. As one tongue-in-cheek commenter puts it on the SodaHead site, “I see. So a government run health care plan will lead to a totalitarian dystopia, and the downfall of the United States. I should have seen that coming when every other country in the western world descended into anarchy… If nothing is done, then the United States will suffer the same fate as Canada, Australia, and every country in the European Union.”
Sadly, this essay isn’t the only piece of misinformation making its way around the e-mail circuit, nor the worst. FactCheck.org has identified twenty-six outright falsehoods in another “analysis” of the bill that started circulating last August. This kind of dishonesty is way too prevalent these days… and will be, as long as people keep falling for it.
Whether this response will have any impact at all, or just go neglected in the digital aether, I have no idea. Mass media aside, this kind of viral propaganda is how a lot of people get their information these days… buying their opinions cheap and prepackaged, without bothering to look into the details for themselves.Tags: Congress, conservatism, Constitution, e-mail, government, health care, insurance, Medicare, Michael Connelly, Supreme Court