Friday, December 17, 2010

David Bellow Response to Government's Motion to Dismiss in Obamacare Lawsuit

The Federal Government filed a motion to dismiss my lawsuit that claims Obamacare is unconstitutional.

Below is my response to the Motion to Dismiss:


IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF TEXAS

Beaumont Division



Michael David Bellow Jr.

Plaintiff,

CIVIL ACTION NO: 1:10-CV-00165

JUDGE RON CLARK

MAGISTRATE KEITH F. GIBLIN

v.



UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES et al.’
Defendants.

___________________________________________/



Plaintiff’s Response to Defendants’ Motion to Dismiss

1) The United States Constitution, in Article III, section 2, gives Federal District Courts jurisdiction to hear cases involving constitutional rights and federal law. This is called Federal Question Jurisdiction.

This Plaintiff’s complaint clearly pertains to issues involving constitutional rights and federal laws, and is not just simply one individual’s dislike of government policy.

2) Standing is simply the plaintiff’s ability to show the court that the law in question is connected to a harm that the plaintiff is or will receive. The law will clearly affect the plaintiff because the plaintiff is forced to pay for a private health service or pay a penalty to the government.

The plaintiff did not present more information about himself in the original complaint, other than he is an American Citizen, because that is all the information needed because this law applies to ALL American citizens.

The Defendants, in their motion the dismiss, admit that all American citizens must maintain a minimum level of health insurance coverage or face a penalty starting in 2014, unless the individual is exempt. Here is the information about the plaintiff that the court needs: The plaintiff is a 26 year old working male and does not get free health insurance coverage and is not exempt from having coverage. Therefore the plaintiff must pay for health insurance coverage, a private health service, or the government will penalize the plaintiff, therefore directly damaging the plaintiff through an unconstitutional extension of power that amounts to a direct tax. The penalty not going into effect until 2014 has no effect on the fact that, as the law stands, the plaintiff must pay for private healthcare coverage or face a government penalty. The plaintiff does not need to wait until he is hurt to file a lawsuit when the plaintiff can clearly show that he WILL be hurt. This lawsuit is to prevent the plaintiff from being hurt by a clearly foreseeable damage.

The damages do not only pertain to a monetary penalty. The damages also pertain to a direct infringement of plaintiff’s constitutional rights. Even if the defendants offered free health insurance coverage for the plaintiff, the fact is that the plaintiff has no option to not have any health care coverage at all. Nowhere does the constitution allow the government to force all individuals to have health insurance. The defendants might have a constitutional authority to regulate commerce and regulate health insurance, but the defendants do not have any constitutional authority to force all individuals to actually engage in said commerce. For instance, the government can regulate the auto industry, but the government cannot force everyone to buy or have a car (even if it was given to them for free). The defendants cite Baldwin v. Sebelius as a reason to dismiss the plaintiff’s case because in Baldwin v. Sebelius the court dismissed the case because the plaintiff could have changes in his job or age that would qualify him for minimum coverage by 2014. This does not apply to the plaintiff because the plaintiff in this case does not want minimum coverage by 2014 and instead the plaintiff believes it is his constitutional right to decide to have no private health coverage at all and the defendants forcing the plaintiff to have coverage extends beyond the defendants’ authority and infringes on the plaintiff’s constitutional rights.

The damages also extend to an infringement of plaintiff’s personal medical decisions and the privacy of their medical records. The defendants, in their motion to dismiss, state that some individuals will be exempt if they can show that they have a health insurance policy that would qualify as minimum coverage. This statement opens up an entirely different and more complex issue than what has already been addressed. First of all, how will the government know whether or not to penalize plaintiff for not having qualifying health insurance unless the government has complete access to plaintiff’s private health records, which would be an infringement of an individual’s fourth amendment rights. Second, what is considered qualifying health insurance? This seems to indicate that the government will approve all healthcare plans. That means that the plaintiff’s private treatment choices could be determined by what the government determines that all health insurances must offer, or not offer, in order to be qualified. This practice of the government determining what qualifying health insurance is will predetermines plaintiff’s potential treatment options. The defendants determining what is qualifying or not could also go against an individual’s First Amendment rights. If the government says that, in order to be qualified, all health insurance policies must offer abortion, and the plaintiff does not believe in paying for abortions because it is against his religion, then that individual is being deprived of their right to practice their religious beliefs. These questions of how the defendants will access plaintiff’s personal health records, and how the defendants will determine what is qualifying insurance, present issues that are serious enough to be examined by the court.



Conclusion

The defendants’ Motion to Dismiss should not be granted.




Respectfully submitted and signed this 11th day of December, 2010


_______________________________

Plaintiff, Michael David Bellow Jr.

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