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Marshall’s HB 10 Bill challenges right of “Obamacare” to force Virginians to purchase health care

Thursday, January 7, 2010
By Susan Thompson
Source: Courtesy of 7Bends Shenandoah Valley

Richmond, VA – Today, Delegate Bob Marshall of the 13th District, Virginia House of Delegates, released an announcement about HB 10, the bill being introduced soon in the Virginia Legislature. Marshall outlines the penalties that Virginians will face if they do not purchase the health care program being pushed through the U.S. Congress now and presents a Q&A that answers specifics aspects of how “Obamacare” will directly affect families in our state. Here is what he has to say:

“Congress has never, in 220 years, mandated that individuals purchase any private service or good, until now. Both the U.S. House and Senate health insurance “reform” bills approved by Virginia Senators Jim Webb and Mark Warner threaten our families with jail time and fines up to $25,000 if we do not purchase health insurance that Obama Health Czars think is good for us whether we want it or not.

For example, both Mark Warner and Jim Webb voted to coerce you into paying for elective abortions. Penalties, including jail for a year if you refuse to pay, start for a single month without health coverage.

“Health care reform” bills which Congress’ own staff call novel, unprecedented, and of suspicious constitutional foundation are not solutions to problems.

Rather, the bills threaten our liberties and economic welfare because they steal the primary responsibility for economic welfare from families and adult individuals and turn it over to Washington politicians and their bureaucracies. Something is very wrong with this. We all know it. And we can stop it.

My HB 10 is a direct challenge to Obama Care mandates and affirms that no person, church, business or other entity can be punished for failure to purchase a particular plan of health insurance.

The purpose of HB 10 is to empower the state of Virginia and Virginia citizens to challenge the health insurance mandate provisions of the federal insurance bills. HB 10 will get around the ideological road blocks from out of touch Congressmen and Senators because states and grass roots citizens still are the foundation of our Constitutional balance of power.

HB 10 has received support from conservatives, Republican activists, Right to Lifers, Tea Party members, Libertarians, Ron Paul supporters, and small businessmen. Please contact your Virginia legislators (delegates, and especially state senators) and urge them to co-patron HB 10. Please let your friends know about the hope offered by HB 10. Anyone who needs to find their representative in the Virginia House of Delegates and/or the Virginia state Senate can go to the official web site.”

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“HEALTHCARE FREEDOM ACT” TO CHALLENGE OBAMACARE – Question and Answer (Q&A)

Will a Washington Obamacare health Czar decide how you spend your family’s income, or will you?

Will you remain a citizen or become a serf?

Q. What is the Virginia “Health Care Freedom Act?”
A. The “Health Care Freedom Act” (HB 10 in the Virginia General Assembly) is a proposed state law to challenge the provisions of Obamacare which mandate individuals purchase private health insurance approved by the Obama Administration or be fined $1900, face a year in jail and pay penalties up to $25,000 (half the median income of American families.) Penalties start if a payment is missed for a single month.

HB 10 states: “No law shall restrict a person’s natural right and power of contract to secure the blessings of liberty to choose private health care systems or private plans. No law shall interfere with the right of a person or entity to pay for lawful medical services to preserve life or health, nor shall any law impose a penalty, tax, fee, or fine, of any type, to decline or to contract for health care coverage or to participate in any particular health care system or plan, except as required by a court where an individual or entity is a named party in a judicial dispute. Nothing herein shall be construed to expand, limit or otherwise modify any determination of law regarding what constitutes lawful medical services within the Commonwealth.”

Q. How can a state law challenge Obamacare? Doesn’t the federal “Supremacy Clause” trump any attempts by the people through their State legislatures to oppose Obamacare’s insurance mandates?
A. HB 10 relies on provisions of the federal constitution which recognize the inherent contract powers of citizens and residents, the “liberty” rights protected by the 5th and 14th Amendments, and limits on federal taxing powers on persons. Moreover, the Ninth and Tenth Amendments to the US Constitution affirm a supremacy of rights reserved to the people and to the states: Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Amendment 10: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Q. Congress already mandates tax payments for Social Security, Medicaid and Medicare. What’s so different about Obamacare mandates?
A. Congress has never attempted to force individuals to purchase anything in the private sector. An August, 1994, Congressional Budget Office report by Robin Seller, written re: Hillary-care, states: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

Q. What is the significance of the “Contract Power?”
A. This natural right recognized by the US Constitution to contract for goods and services is threatened because Obamacare forces citizens to contract for private health insurance under penalty of significant fines and jail time. Courts do not enforce involuntary contract promises. “Duress” renders contracts null and void.

Q. But doesn’t universal health insurance ensure the “general welfare,” which the federal government has the power to promote?
A. If Congress can force individuals to buy health insurance for the “general welfare,” then it can mandate under jail penalties or fines that citizens purchase new windows or insulation to save the environment, or that states they may not register automobiles older than 2005 to minimize air pollution. Further, the Congressional Budge Office in 1994, stated Congress would be exercising a dangerous power: “a decision to exclude the costs of an individual mandate to purchase health insurance from the budget could lead policymakers to impose other mandates on individuals and, in the extreme, to use mandates to control the allocation of a large portion of the nation’s resources without the cost of those actions being controlled through the federal budget process.”

Q. Certainly the federal government has the power to tax. Isn’t Obamacare just an extension of its taxing powers?”
A. Congress has authority to tax imports, exports and income (16th Amendment), but Article 1, Section 9 of the US Constitution denies Congress the power to levy a direct tax (capitation tax) on a person or property unless apportioned among the states. This means if a state had 6% of the nation’s population, 6% of the tax would have to come from that state. Since the tax penalty on a person or entity for refusing the buy Obamacare is not applied in this manner, it is unconstitutional.

Q. If Congress has the power to regulate business under the Interstate Commerce Clause, doesn’t it have the power to regulate Obamacare?
A. Congress may regulate business under the Interstate Commerce Clause, and even intrastate commerce if it significantly impacts interstate commerce. But failure to purchase insurance is not an economic activity: it is the absence of activity. How can non-activity be regulated? The US Supreme Court struck down federal laws which attempted to make it criminal to possess a gun within 1000 feet of a school (1995) and part of another law banning violence against women (2000) because neither law had anything to do with commerce.

In 2009, the Congressional Research Service noted that: “The Commerce Clause of the US Constitution empowers Congress ‘[t}o regulate Commerce…among the several States … one of the broadest bases for the exercise of congressional powers. Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance…Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”

Q. Since citizens vote for their US Representatives, if Congress passes Obamacare, must citizens abide by the law?
A. The first duty of Congress is to serve citizens under the US Constitution. Congress’ own staff concluded that the proposed insurance mandates are novel and unprecedented in the 220 years since Congress was established in 1789. Forcing citizens to purchase private health insurance violates the compact between elected representatives and citizens reducing government “of, by and for the people,” to demands of lords over serfs. The Declaration of Independence affirmed that it was both a right and moral duty of citizens to challenge laws that are unconstitutional and governments that are despotic.

Q. But the federal government compels citizens to register for selective service and state governments require the purchase of auto insurance?
A. The power to raise an army to provide for the common defense in an enumerated power given to the national government. The mandating of health insurance is not a power granted to Congress. Forty-seven states impose liability insurance to drive on public, tax-paid roads. No insurance is needed to drive at any speed on one’s own property. Liability insurance is required to protect others from injuries. Driving is a privilege subject to conditions imposed by state legislatures which are empowered to enforce general police and welfare powers.

Q. Does HB 10, the “Health Care Freedom Act” protect businesses?
A. Yes. Obamacare requires every company with an annual payroll of $500,000 or more to insure its workers with private plans, approved by the Obama Administration, or pay an 8% payroll tax. Obamacare also requires companies that do provide health insurance to pay 72.5% of an individual’s premium, and 65% of a family plan. While Congress has passed laws pertaining to minimum wage, overtime, workplace safety, family leave, and workman’s compensation, it never required companies to offer non-wage related or “fringe benefits” such as health insurance. Companies are not required to offer retirement plans, but if they do, they must conform to ERISA laws. Companies may, but are not required to, offer health insurance.

A legislative memo about the unconstitutionality of individual health purchase mandates prepared for the Heritage Foundation by Georgetown University law professor Randy Barnett can be found here and one from the American Center for Law and Justice can be found here.


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