The health care reform bill, standing, and willful confusion

The Constitution assumed local control of most government functions, not the current centralized system.
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The health care reform bill debate has turned to willful confusion on whether and how that bill harms anyone subject to it. The case of Purpura v. Sebelius has provoked the bill’s proponents to try to say that the case law is not what it really is. Anyone who looks closely at that case law will see that the plaintiffs in Purpura are correct and the government wrong—or lying.

Claims against the health care reform bill

To review, Nicholas E. Purpura and Donald R. Laster Jr say that the health care reform bill violates the US Constitution in fifteen ways:

  1. The health care reform bill, which raises revenue, started in the Senate, not the House.
  2. It exceeds Congress’ authority “to regulate commerce among the several States.”
  3. It raises and supports an army—the Health Care Ready Reserve Corps—with a four-year appropriation.
  4. It lays a capitation tax without apportionment among the States.
  5. It taxes the exports of some States more than others. (Taxes on medical devices fall more heavily on the States where their makers build them.)
  6. Obama had no authority to sign the health care reform bill, or indeed any other bill, into law. He is not a natural-born citizen of the United States.
  7. It double-taxes some income, and taxes other income that, strictly speaking, doesn’t exist.
  8. It allows Inspectors General to search or seize private medical records without a warrant.
  9. Its “individual mandate” deprives people of property without due process of law, and makes involuntary servants of them (by making them buy a service whether they want it or not).
  10. It directs the States to do the same, in violation of the Fourteenth Amendment.
  11. It favors some religions and disfavors others, by exempting those who adhere to favored religions from the individual mandate.
  12. It limits judicial review of several provisions of the bill.
  13. It taxes some goods and services that members of some, but not all, races use, thus discriminating among races.
  14. It implicates Congress in a violation of their oath “to bear true faith and allegiance to” the Constitution.
  15. It abrogates the reserved powers of the States and the People.

Purpura and Laster claim injury in fact on these grounds:

  1. The individual mandate forces them to buy something, or pay a fine (or a tax) for not buying it, whether they want to buy it or not.
  2. The medical-device taxes, and taxes on tanning equipment and so on, are extra expenses that, absent the bill, they would not have. (In fact, several tanning salons have recently closed their doors rather than pay this tax.)

No court, hearing a case on appeal, can consider any argument that appellants (or petitioners) or appellees (or respondents) did not raise at or prior to trial. Hence raising fifteen different counts, even though most of them refer to the same act. Any plaintiff alleges all the ways that a defendant broke the law, even by one act.

The issue before the Third Circuit

James A. Byrne Federal Courthouse, Philadelphia, PA, where a landmark health care reform bill is on appeal.

The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. More than one health care reform bill case is on appeal here. Photo: US Department of Justice

Purpura and Laster brought their case to the Third Circuit Court of Appeals after the District Court said that they lacked standing. In short, the court held that the law does not harm them. But the court did not reason that “they suffered no worse harm than would anybody else.” The court held that the law does not harm them at all. Specifically, the individual mandate should not worry them because, for all they do or can know, they would have employer-based coverage by 2014.

The court could not so reason today, if indeed it had any justice to its reasoning before. Since then, several studies have predicted that half of all employers in this country will drop coverage for their employees. The health care reform bill makes private insurance too expensive. That study alone would show the strongly probable harm that would come to any citizen or lawful resident.

Stand on liberty

But Purpura and Laster stand on a more fundamental principle. The health care reform bill harms anyone concerned for his liberty. A measure that fines someone for not buying a good or service, takes his liberty from him. A measure that lays a capitation tax on him likewise takes his liberty from him. And a measure that interferes with a power reserved to the States, also threatens the liberties of every lawful resident of that State.

The landmark case of Bond v. United States makes that abundantly clear. Mrs. Bond, a classic “woman scorned,” put a caustic substance on another woman’s front doorknob, car door handle, and mailbox. The substance burned the other woman’s hands. She called police. They arrested Mrs. Bond.

Now the State of Pennsylvania could have charged her with something routine, like assault with a deadly weapon or criminal trespass. Instead, the federal government charged her with possession of a noxious chemical with intent to harm a human being, in violation of—get this—a law that Congress passed to carry out a United Nations convention. In short, the federal government treated her as if she were handling nerve gas.

In the Federal District Court for the Eastern District of Pennsylvania, Mrs. Bond’s lawyers moved to dismiss the charge because the federal law infringed on Pennsylvania’s police powers, in violation of the Tenth Amendment. The court denied the motion. So Mrs. Bond pleaded guilty—conditionally. She reserved the right to challenge the chemical-weapons conviction in a higher court.

The Third Circuit Court of Appeals denied her appeal because she lacked standing. The court held that the Tenth Amendment protects States but not their citizens or lawful residents. Thus only the Commonwealth of Pennsylvania could bring a Tenth Amendment action.

The Supreme Court, on June 16, 2011, disagreed.

Federalism has more than one dynamic. In allocating powers between the States and National Government, federalism “ ‘secures to citizens the liberties that derive from the diffusion of sovereign power,’ ” New York v. United States, 505 U. S. 144, 181. It enables States to enact positive law in response to the initiative of those who seek a voice in shaping the destiny of their own times, and it protects the liberty of all persons within a State by ensuring that law enacted in excess of delegated governmental power cannot direct or control their actions. See Gregory v. Ashcroft, 501 U. S. 452, 458.


The law to which she is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about had the matter been left for Pennsylvania to decide.

Several commenters have said, in this comment space, that Mrs. Bond gained her standing when the federal government charged her with a crime under an arguably unconstitutional act. Those same commenters admit elsewhere that one does not have to break the law to gain standing to challenge the Constitutionality of that law. One need only be subject to that law.

Some say that standing requires a “particular” injury that most people do not suffer. That argument defies logic. If the government decides today to forbid anyone to criticize it, that law would apply to everyone. By that argument, then, no one would have standing. And by the reasoning that the New Jersey District Court used in Purpura, anyone could avoid the injury-in-fact by a simple expedient: keep your mouth shut!

Two alleged countervailing cases

Those same commenters mention two other cases that, they say, countervail Bond. They are:

  1. Arizona Christian School Tuition Organization v. Winn et al., 09-987 (Decided April 4, 2011.)
  2. Doremus v. Board of Ed. of Hawthorne, 342 US 429 – Supreme Court 1952

Plaintiff Winn sued the Arizona Christian School group because they got a tax credit that Mr. Winn said violated “separation of church and state.” Doremus sued the Hawthorne (New Jersey) Board of Education because his children had to endure hearing the reading of Bible verses in class.

In each case, the Supreme Court held that the plaintiffs did not have standing. In Arizona, the court said that a tax credit did not harm any particular taxpayer, and Winn could not show that the tax credit put his community in financial straits. Doremus did not show that the school was interfering with his right to practice his religion outside the classroom, or forcing his children to convert to, or from, Christianity or Judaism. (For the record, the verses came from the Old Testament, not the New.)

That anyone would still use Doremus as a case to say that ordinary citizens lack standing makes no sense today. Atheists routinely file such lawsuits today, and prevail, strictly on the “offensiveness” test. If they have standing, why wouldn’t Purpura and Laster against the health care reform bill?

But the commenters make another mistake. A decision to forgive one person’s taxes is a political decision. But to tax, or fine, one particular person for doing a thing, is to deprive that person of the liberty to do that thing. (To make that thing a felony or misdemeanor is a political act, subject to Constitutional limits.) And to tax, or fine, that person for not doing a thing, is to enslave him and force him to do that thing. Those are definite, particular harms. And in our courts, the person suffering that harm has the right to seek redress in the courts.

Cases relevant to the health care reform bill

These commenters ignore the case of Thomas More Law Center v. Obama, Court of Appeals, 6th Circuit 2011. The Thomas More Law Center sued the government (naming Obama as the defendant) over the health care reform bill, and especially over the individual mandate. True enough, the Sixth Circuit found in favor of the government. (The Thomas More Law Center is asking for Supreme Court review.) But before the Sixth Circuit got to that point, it asked itself whether the plaintiffs had standing. The court’s answer: yes. The Thomas More Law Center showed actual injury and imminent injury. Either form of injury is enough for standing.

If the Thomas More Law Center has standing to challenge the health care reform bill, then Purpura and Laster have even more standing. As ordinary persons, they will have to pay the tax, or fine (or whatever the government wishes to call it.)

Even more telling is Florida ex rel. McCollum et al. v. HHS et al., the case that Judge Roger Vinson decided in the District Court for the Northern District of Florida. Judge Vinson, as everyone knows, found for the plaintiffs. (That case is before the Eleventh Circuit.) And he could not even have done that much before ruling on standing. Most people forget this key detail: the 26 States in that lawsuit were not the only plaintiffs. The National Federation of Independent Businesses, and two private persons, also joined as plaintiffs.

Judge Vinson said that the two private persons had standing to complain against the individual mandate in the health care reform bill. Purpura began with two persons; over 100 others have since joined. Judge Vinson has set a clear precedent that private persons have standing to challenge the health care reform bill in court. States are not the only parties with such standing.

(Another thing that people forget about the Tenth Amendment: it reserves certain powers to the people, not to States alone. So a person, being “one of the people,” has standing to challenge any federal law that infringes on any of his “reserved powers.”)


By any reasonable standard whatsoever, the New Jersey District Court used specious reasoning to rule that Purpura and Laster lack standing to challenge the health care reform bill. If the Third Circuit decides to accept that reasoning, Purpura and Laster will go to the Supreme Court. The Bond precedent says that they will prevail—particularly because the Court decided the Bond case after it decided the Arizona case.

The Motion to Dismiss

Some have said that the Motion to Dismiss “stopped the clock” on the deadline for answers to the counts that Purpura and Laster alleged against the health care reform bill. But: the government filed that Motion in February of 2011, well after the deadline had passed. Purpura and Laster filed their suit against the health care reform bill in September of 2010. The Federal Rules of Civil Procedure give the United States sixty days to respond to a complaint naming it as defendant. Those sixty days ran out in November, and the DOJ never filed anything but a response to an injunction request during that time. The government did ask for an extension of time, but only after Purpura and Laster moved for default judgment on December 9, 2010—again, well after the response deadline.

Furthermore, “lack of subject matter jurisdiction” (in this case, no standing) is the only special defense that the government has raised. A defendant may raise that defense at any time. But if a defendant has a defense like inadequate service of process, they must raise that within the deadline, or they waive it. (The only way that that could apply: Purpura and Laster, when they served their complaint in September of 2010, forgot to serve a copy on the US Attorney for New Jersey. But his office since asked Purpura and Laster to send them a copy, which they did. Therefore, they have waived that defense.)

All this means that, once any court rules that Purpura and Laster have standing, they win by default. The consequences are much further-reaching than a judgment against the health care reform bill. They include a judgment against the man now holding office as President of the United States.

This might be why a commenter asked,

[Y]ou don’t really believe that a court will oust a president, nullify an election, install an un-elected private citizen and destroy the government based on a default, right? Even without knowing that it’s insanely easy to get a default judgment overturned, you couldn’t possibly think that the court would do all that because of one missed deadline, right?

As a matter of fact, Richard Cheney, the last elected Vice-President, would become President until another election settles the dispute. So he would not be “an un-elected private citizen.”

More broadly, the tone of the above question shows how breathtaking the consequences will be. This will be a magnitude-9.0 or stronger political earthquake. Then again, so was the case of United States v. The New York Times and The Washington Post. Or United States v. Nixon.

Featured image: the Constitution of the United States. Photo: National Archives.