No Health Care Penalty? No Problem: No Due Process

Abstract

The Affordable Health Care Act [Act], which mandates all individuals to have health insurance and “penalizes” those who do not, is unconstitutional for five reasons. This article focuses on one: the lack of procedural due process. So far, all courts and almost all commentators have failed to discuss this fatal flaw.

This article also covers one other issue heretofore un-discussed in the many publications and briefs on the Act: the proper standing of States to challenge the “penalty” as an unconstitutional Direct tax, and thus the manifest error of the Court of Appeals for the Fourth Circuit. This essay then briefly discusses why the Anti-Injunction Act does not apply to state litigants.

Keywords: Health Care Act, Due Process, Procedural Due Process, Health Insurance, Unconstitutional Direct Tax, Individual Mandate, Necessary and Proper, Tenth Amendment, Penalty, Obamacare, Anti Injunction Act