Flawed Texas Health Freedom Act

The following was sent to Representative Ken Paxton, a leading contender for election as Speaker of the Texas House.

-------- Original Message --------

I have several questions about your Texas Health Freedom Act, which are interleaved in your message below.


On 11/19/2010 06:07 PM, Representative Ken Paxton wrote:

Protecting Patients in Texas with the

Texas Health Freedom Act 

Last March, when Congress passed the Patient Protection and Affordable Care Act, also known as "ObamaCare," I committed to work on passing a bill in Texas to reject this over-reaching federal legislation.  And so last week (the first week we were able to file bills for the upcoming legislative session, I filed the Texas Health Freedom Act as my first bill for the 82nd Legislative Session. 

The power of the federal government to require an individual to purchase health insurance coverage is not found in the United States Constitution.  Additionally, the federal government should refrain from imposing unjustified conditions and federal requirements that should be decided by state legislatures, rather than the United State Congress.

My legislation, (House Bill 97 and House Joint Resolution 24) would accomplish the following:

·         Guarantees that individuals in Texas have the right to choose or decline to choose health insurance coverage without penalties or sanctions or threats of penalties or sanctions;

How can any such legislation effectively guarantee such protection? Does the bill commit the State of Texas to paying all such penalties for Texans if it cannot prevent them from being imposed? If not, how, specifically, step by step, would the process of protection actually work in practice, under a full range of possible scenarios?

Remember, the Health Care Act (PPACA) specifically forbids the IRS to collect such penalties or taxes by levy or lien. That means all they can do is collect the money by other means, such as through employer withholding, and then refuse to refund the money, and perhaps go after the "taxpayer" for a deficiency, not for the insurance penalty, which would already have been paid at that point, but for the unpaid taxes. They can levy or lien for the deficiency. That is sufficient for them to collect from most. This can all be done by IRS agents from outside the reach of Texas law, through the banks. Does your plan contemplate defending Texans from having to pay those remaining tax claims, including paying for the lawyers, paying the IRS claims directly, or compensating the citizen for time served in prison?

Some have proposed the absurd remedy of making it a crime for federal agents to try to collect the insurance premium. Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be immediately dismissed, on the grounds that an agent has immunity for anything he does while on duty.

·         Limits the power of the state agencies, public officials, employees, or political subdivisions from imposing, collecting, or enforcing a penalty or sanction intended to punish or discourage the right of the individual to choose their own private health insurance coverage; and

There is nothing in the PPACA that involves the State in any of this, or offers any point at which it could prevent collection by some kind of non-cooperation, except perhaps by refusing to withhold taxes from the wages of state or local employees, and the PPACA does not provide for separating out health insurance premiums from other amounts to be withheld, such as FICA. The IRS would just publish their tax tables, which would combine everything into a lump amount, and the separation would not be made until the "taxpayer" files his return and claims a refund. There would be no way state or local government employers could separate out the insurance premiums for non-withholding.

Or does your bill contemplate doing things like cutting off the utilities of federal offices until they leave the state, and do everything to Texas citizens from outside with little reduction in their efficiency?

·         Givers the Attorney General the authority to seek injunctive relief against the federal government and defend the state of Texas in court to uphold our state sovereignty.

The State, like everyone else, is forbidden from seeking an injunction by the Anti-Injunction Act, 28 USC 2283, a statute that dates back to the Judiciary Act of 1793.  The AG needs no special legislative authority to defend the State in court, but the PPACA would not be about suing the State, and the need is to be able to defend the ordinary "taxpayer". Two conjoined 1923 U.S. Supreme Court decisions block that. The first is Frothingham v. Mellon, 262 U.S. 447, which denies standing in court to anyone who does not face actual personal injury, and the second is Massachusetts v. Mellon, (also 262 U.S. 447) which denies standing to a state to represent the rights of one of its citizens in federal court, which had previously been an available remedy under the doctrine of parens patriae.

The U.S. Constitution sets forth the framework of government that limits the power, authority, and ability of the federal government.  When the government steps beyond the boundaries of their constitutional limits to require individuals to purchase private products under threat of penalty, then the freedoms of individuals are threatened.  The Health Freedom Act, which has been passed by a resounding margin in other states throughout the year, gives Attorney General Abbott the ability to defend our state sovereignty while allowing Texas to determine an appropriate course of action to develop health care delivery methods that maximize the rights of individuals. 

The AG is already one of the co-plaintiffs on litigation that has so far been stripped of all but two of its claims for relief in Florida by Federal Judge Roger Vinson, and most legal scholars expect the remaining two to be dismissed as well. The case is discussed here. There is a line of legal argument that would have merit, that would challenge federal withholding itself, but neither it nor this case, drafted by David Rifkin, has any real chance. Nothing short of a constitutional amendment can overcome the mountain of entrenched precedents, going back more than a century, that no Supreme Court is going to be willing to unravel.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .