"[T]he burden of government is not measured by how much it taxes, but by how much it spends." ~ Milton Friedman
A Non-Lawyer Looks at the Law
Exclusive to STR
I can safely assume you will not recoil in astonishment if I tell you I have not read all 2,000 pages of the latest health care bill. Like you, I know only what I've heard and seen in the media, and on the Internet.
For instance, I understand that firms will be required by the proposed law to provide health insurance for their employees, and individuals who decide not to purchase health insurance for themselves may be fined and/or imprisoned if they refuse to do so.
Even at this modest level of understanding, however, I realize that there is one aspect of this proposal that has, to my knowledge, been overlooked. It is this: This bill, if enacted into law, will provide a fertile field for lawyers! Of course, any business larger than a roadside vegetable stand requires a team of lawyers on retainer just to keep it current on the regulations and requirements of the rulers. But this bill, it seems, goes so far beyond what is generally accepted as reasonable, legal, and proper that it should spawn countless lawsuits. (Come to think of it, nearly all of 'our' legislators are lawyers. Hmm!)
What has crossed my mind in this connection is the matter of 'standing.' The term applies to the suitability of a potential plaintiff. For instance: If I see your car weaving down the street and knocking over a neighbor's mailbox, can I sue you? No, because I do not have 'standing.' And that is because I was not harmed, or injured, by your action. A plaintiff must be able to show personal harm, or injury, in order to have standing to sue. Suppose, then, that you decide to sue the government, claiming you've been harmed by being forced to buy insurance for your health, when you are young and healthy, and do not feel the need for such insurance. Will you prevail?
Don't count on it. Over the years, many suits have been brought against the government by individuals or groups claiming harm or damage from some government program, and their successes have been few. Being forced to obtain insurance--which, in itself, could be a good thing, after all!--is hardly 'harmful.' And furthermore, the law does not single you out to buy it; you are simply a member of a society which deems it important for everyone to be insured. Of course, the fact that the court hearing your case is an integral part of the system you are suing should also be considered. Keep in the back of your mind the possibility, however remote, of self-interest and corruption as integral parts of the system.
But what if it's the other way around? You are not suing the government because it forces you to buy something you don't want, but, rather, the government is suing you because you haven't bought health insurance. What now of 'standing?'
The government is the plaintiff. As such, mustn't it prove it has been harmed, or injured, by your action? Let's see what the Supreme Court had to say in 1975 regarding standing:
- 1) 'The person can only stand for him or herself. The person standing cannot represent a third party who cannot be present in court.' This is why I cannot sue on behalf of my neighbor whose mailbox you destroyed by your erratic driving. If the federal government sues you, is it suing on its own behalf? How can it show it has been damaged if you don't buy health insurance?
- 2) 'Suing when damages affect many other people as well is not permissible.' This is why you, as an individual, will not prevail if you sue the government claiming injury from one of its policies which affects millions in addition to you.
- 3) 'Standing has to take place in the appropriate court (zone of interest) and the person standing must be within the area, again zone of interest, that is affected by the challenged law.' I'm not sure how this would apply, except, again, to make it virtually impossible for an individual to sue the government regarding one of its laws.
The question, therefore, is: How would the government gain standing to sue you if you decided to thumb your nose at the 'law' requiring you to buy insurance? The government, after all, is an abstraction. Your disdain for its laws can hardly be said to harm it. In law, corporations, and assorted other organizations, may be considered 'persons,' with all the rights and duties attached thereto. Presumably, this gives corporations, and other organizations, standing. But is the government, in law, a person?
Looking at these requirements for standing imposed by the court, it is easy to see that the court was speaking of individual persons, and their standing--or lack of it--to sue the government. For example, the court also stated, 'The person must be able to establish that he or she has suffered or will suffer injury as a result of the law.' If the government sues you in some matter, it is not claiming that it'the government--was injured by its law! But it is also true that the government can hardly claim any injury at all from your actions, or inaction. Does anyone ever challenge the government's standing to sue? I don't know, but I'm not a lawyer. I suspect, however, that a person being sued by the government would find his demand--that the government show standing--dismissed as preposterous, trivial, or utterly worthless.
And yet, it remains true that there is no crime, and thus no case, if no one can step forward and claim injury or harm. If you decide not to buy health insurance, who is harmed? And if no one is harmed, who has standing to sue? And if no one has standing, is there a crime, and a case?
If the government is exempt from the requirement it imposes upon other plaintiffs, by what authority did it gain such exemption? Did it bestow it upon itself? And if so, are we supposed to take that seriously?