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November 20, 2009

Criminalizing Health-Care Freedom: Obamacare Supporters Would Use the Brute Force of Criminal Law for Social Engineering

By and

The "reformers" in the White House and the House of Representatives have made all too plain their vision of the federal government's power to coerce individual Americans to make the "right" health-care choices. The highly partisan bill the House just passed includes severe penalties for individuals who do not purchase insurance approved by the federal government. By neatly tucking these penalties into the IRS code, the so-called reformers have brought them under the tax-enforcement power of the federal government.

The Congressional Budget Office stated on October 29 that the House bill would generate $167 billion in revenue from "penalty payments." Individual Americans are expected to pay $33 billion of these penalties, with employers paying the rest. Former member of Congress and Heritage Foundation fellow Ernest Istook has concluded that for this revenue goal to be met, 8 to 14 million individual Americans will have to be fined over the next ten years, quite an incentive for federal bureaucrats.

Who will be included among those subject to civil and criminal penalties if this provision becomes law? For starters, any family of four whose combined income in 2016 is above $102,100 ($88,200 in today's dollars) and that chooses to pay all its medical expenses out of pocket rather than pay the $15,000 a year that the CBO says will be the lowest-priced insurance option for families. Also any healthy twentysomething in a city with high costs of living who chooses to take the risk of going uninsured. And by outlawing the popular high-deductible plans that are currently among the lowest-cost health-insurance solutions, the new law would only increase the number of Americans on the rolls of those who cannot afford insurance. The CBO itself estimates that at least 18 million Americans will still be uninsured in 2016.

The fact that the penalties for noncompliance are enforceable by criminal prosecution is a chilling abuse of the prosecutorial power, which Columbia law professor Herbert Wechsler pointed out 50 years ago is the greatest power that any government uses against its citizens. Using it to enforce one particular notion of appropriate insurance coverage is nothing less than a tyrannical assertion of raw government power over the private lives and economic rights of individual Americans.

How would the penalties work? As a starting point, taxpaying Americans who do not satisfy the law's insurance requirement would be penalized on their federal income-tax returns. Their tax burden would be increased by the lesser of (a) the amount the government decides they should pay for government-mandated health coverage or (b) 2.5 percent of their adjusted income above a filing threshold. An otherwise law-abiding American who fails to pay this "tax penalty" could be criminally prosecuted and sentenced to a year in prison if the feds deem his refusal to be a misdemeanor.

Worse, if the feds decide the refusal is felonious, the culprit may spend five years in federal prison and be fined up to $250,000. You could end up in a cell in Leavenworth even if you have paid all your family's medical bills yourself.

By transforming a refusal or failure to comply with a government mandate into a federal tax violation, the "progressives" are using the brute force of criminal law to engage in social engineering. This represents an oppressive, absolutist view of government power.

What does President Obama think of the criminalization of Americans' economic choices? He trivialized the issue when he told ABC's Sunlen Miller he didn't think the question of the appropriateness of possible jail time is the "biggest question" the House and Senate are facing right now.

We beg to differ.

The idea of imprisoning or fining Americans who don't knuckle under to an unprecedented government mandate to purchase a particular insurance product should outrage anyone who believes in the exceptional promises and opportunities afforded by our basic American freedoms. The idea isn't progressive but highly regressive, the equivalent of reinstituting debtors' prisons, a punishment Americans eliminated 160 years ago.

Of course, the prospect of winding up in prison for failing to maintain government-mandated insurance may be of no personal concern to the president or members of Congress. They each receive a Cadillac version of health-care coverage funded by those same American taxpayers who, in the reformers' vision, will be federal criminals if they have the audacity to make their own decisions about medical insurance.

If the public's objections to this provision grow loud enough, we will undoubtedly be told that criminal prosecution will be used only against really bad actors. But that same reasoning was used to justify the law that sent inventor and entrepreneur Krister Evertson to federal prison for nearly two years. Evertson testified in July at a bipartisan House hearing investigating the overcriminalization of conduct in America.

In May 2004, FBI agents driving a black Suburban and wearing SWAT gear ran Evertson off the road near his mother's home in Wasilla, Alaska. When Evertson was face down on the pavement with automatic weapons trained on him, an FBI agent told him he was being arrested because he hadn't put a federally mandated sticker on a UPS package.

A jury in federal court in Alaska acquitted Evertson, but the feds weren't finished. They reached into their bag of over 4,500 federal crimes and found another ridiculous crime they could use to prosecute him: supposedly "abandoning" hazardous waste (actually storing, in appropriate containers, valuable materials he was using for the clean-fuel technology he was developing). A second jury convicted him, and he spent 21 months in an Oregon federal prison.

Many of the Americans who will surely ignore the government health-insurance mandate may not wind up in prison. But if noncompliance becomes too widespread, any one of us could become the example the feds prosecute to make sure the iron hand of the new Washington is clearly visible to other potential "criminals."

This is Chicago-style hardball, backed by the full power and resources of the U.S. government. It illustrates both Obamacare supporters' view of the appropriate uses of governmental power and the lengths to which they are willing to go to force us to do what they believe is best. It is a view unbefitting a free people.

Unless this paternalistic juggernaut is stopped, Americans will lose some of their most fundamental freedoms, and the power of the federal government to impose novel requirements in every facet of our personal lives will have become virtually unlimited.

Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. Hans A. von Spakovsky is a visiting Legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

First Appeared in National Review Online

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