Oct 27 2013

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Does Obamacare Violate the 4th Amendment?

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First the British, Now Obamacare...

First the British, Now Obamacare…

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” ~ Fourth Amendment

Even in a society that tolerates prodigious litigiousness, talk of additional court challenges to Obamacare draw weary eye-rolling. But fatigue is not an acceptable excuse for inadequate constitutional vigilance.

The debut of Obamacare has highlighted colossal government incompetence through its inability to build a straight-forward networked website, accessible to the public.

But the technical failures of Obamacare have also highlighted a less reported process approval system that raises disturbing constitutional questions. To what extent does the government have the right to compel citizens to produce sensitive personal information, that is then widely shared inside and outside the government, in a consolidated form? Does such a mandatory collection of personal data cross the threshold of Fourth Amendment protections against “unreasonable searches and seizures?”

The source of constitutional unease is the Orwellian-sounding “Federal Data Services Hub,” which is the heart of Obamacare’s technology structure.

To apply for health insurance through healthcare.gov, you must first provide, 1) The Social Security numbers for you and everyone in your family that would be covered, 2) Employer and Income verification for you and each covered family members, 3) Any/all existing health care policies in place, for you or any covered family members, and, 4) A completed “Employer Coverage Tool,” which requires you or your covered family members to report employer coverage that each potential applicant is eligible for, regardless of whether you plan on accepting it.  The verification requirements are stringent and ponderous.

That will effectively provide the government with identifiers linking: 1) Your tax history, 2) Your Income, 3) Your employment, 4) Your patient and medical data, 5) Your criminal background record, and, 6) Core demographic information including family size, age, gender, ethnicity, address, birthdate(s) and Social Security number(s).

Let that sink in. All that information, consolidated and only a mouse-click away.

For those who may be surprised, this development hasn’t been a secret.

A GAO report from June 2013 stated, According to CMS officials, the data hub is to provide one electronic connection to federal sources for near real-time access to data, as well as provide access to state and other data sources needed to verify consumer exchange application information.”

This is how the process is intended to work in practice, which is central to the constitutional question.

After the applicant’s information has been submitted through the state exchange or healthcare.gov,  the applicants information is checked against a credit reporting agency, Equifax, for verification. The application then goes to the Hub where is it shared with state health and revenue agencies as well as seven federal agencies listed below:

Internal Revenue Service: adjusted gross income, family size, filing status (married or single),calculates any tax credits or subsidies applicant will be eligible for.

Social Security Administration: Social Security number validation, Social Security benefit payments, incarceration status.

Department of Homeland Security: verification of immigration status.

Departments of Defense and  Veterans Affairs, Office of Personnel Management and Peace Corps: checks to see if the applicant is enrolled in health care programs run by these departments.

After these checks are done, and  the results affirmatively reported back, the applicant can move on to selection of actual health care plans. All’s well that ends in insurance, right?

But the actual process is something much more onerous, if not as obvious. According to University of Minnesota finance professor Stephen Parente,  the Hub “could be the  largest consolidation of personal data in the history of the Republic.”

Think about that for a second as you remember the IRS’ use of confidential taxpayer information for political harassment through the use of investigations and audits, and its de facto suppression of free speech in targeting conservative 501(c)(4) applications.  That was before Obamacare.

Or this, reported in Saturday’s Washington Post.Late Friday, Immigration and Customs Enforcement (ICE) [of the Department of Homeland Security (DHS)] issued a memo affirming that it would not try to find and deport illegal immigrant whose statuses could be inferred from information they enter into the marketplace.”  Clearly, DHS has the capability to use Hub information for other purposes, but as a matter of policy, does not.  Forget that the ICE memo affirms de facto Obamacare eligibility for illegal aliens, so long as a citizen-family member is applying.

The potential for abuse is real and present.

Still, some might wonder what all the fuss is about.  Americans provide some or all of this information all the time. Need credit? Want to buy a home? Looking for a cell phone plan?  Indeed, you can’t even visit the White House without giving your date of birth and Social Security number. Only voting has an average, lower threshold of proof.

The crucial difference here is two-fold.

First, what we do in our private lives are voluntary activities. We have a choice whether to take actions that will require us to provide very personal information, be it for a job interview or a small business loan – or health insurance. Second, if we do choose to engage a vendor where private information will be shared, it is a 1-1 relationship that is clearly defined, and where, at least notionally, the information provided is contained. Certainly it is not consolidated and run through the gauntlet of private sector, federal and state entities, who must review and approve each transaction.

That the American people are compelled by Obamacare to provide this comprehensive personal information in this wide-ranging format is the root of the constitutional abuse. If the collection of this kind of personal data does not constitute and unreasonable search or seizure by the government, then the Fourth Amendment has all but lost its meaning.

Over to the lawyers.





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