By Mark David Blum, Esq.

I am going to prison. If Nancy Pelosi and the House Democrats have their way with their proposed Health Care Bill, I and many like me will find ourselves being shuffled off to the Big House to do hard time.

The proposed legislation says in sum and substance that if I do not provide medical insurance to my family, I have to pay a tax penalty of 2.5% of my income. In doing so, I don’t get insurance, I just pay a tax penalty. Failing to pay that additional tax could result in a $250,000.00 fine and five years in federal prison.

All this punishment and weight of the government is coming down on me simply because I cannot afford medical insurance. Yes, I am among the 46 million Americans who are presently uninsured or uninsurable. I simply cannot afford the $15,000.00 annual premium charged for the most basic of coverage. This is not a magical or made up number but is the conclusion of the Congressional Budget Office’s analysis of the cost of a family medical plan under the present proposed health care legislation.

Indeed I could avoid prison if I pay the tax surcharge. Query however what do I get for paying that tax. Will I receive medical coverage? Does paying the tax replace a medical policy premium and the government instead provides me health care? No, it is just a fine … a penalty paid to the federal treasury simply because I could not afford to purchase health insurance. I get no benefit, no coverage, no medical care for paying an additional tax. The tax is nothing more than the federal government making it all the more difficult to be a cash paying user of medical services. The federal government is going to take more of my money and give me nothing but more stress in return. Surely some of it will find its way into the hands of Taliban fighters whom the President intends to bribe to stop fighting in Afghanistan. I wonder if they will get health care.

Common sense says that if the government is going to penalize me and tax an additional 2.5% of my income then I as a citizen and taxpayer should get something for my contribution. It is obviously too much to hope for that a single payer system will be put in place. But at a minimum, if I am being forced to fork over money as a result of being unable to pay for medical insurance, then the government should be using that money on my behalf to provide me coverage. I already know that 2.5% of my income will be far less than $15,000.00 and I already know that $15,000.00 for a family health plan is out of my reach.

What if I choose not to pay the 2.5% tax penalty? Then I am going to prison. While in custody, I will get all the health care I will need. My family will be supported by taxpayers and will get Medicaid and other publicly funded health coverage (along with food stamps and welfare). These are the good things that incentivize not paying the tax penalty. Yes, I will lose my freedom, my license to practice law, and my assets. But the government will win the day. They will have another warm body filling a bed in the world’s largest prison system Remember, I am going to prison because I couldn’t afford health care and my taxes jumped as a result. Surely someone besides me must see both the futility and ridiculousness of the government’s position on the issue.

There is also the constitutional question. The proposed tax and imprisonment scheme may be upheld as a valid exercise of the Article I power to "lay and collect taxes, duties, imposts and excises," as bolstered by the Sixteenth Amendment's authorization of an income tax. After all, I am not literally required to purchase health insurance. Speaker Pelosi and her Democratic colleagues require me to pay a tax from which they can be exempted if I have health insurance. In a 1922 case, Bailey v. Drexel Furniture Co., the Supreme Court held that Congress may not use taxation as a pretext for accomplishing a regulatory objective that it could not accomplish directly. But subsequent cases upholding "occupational taxes" on businesses that Congress clearly intended to discourage, have made clear that a tax that serves a revenue-raising purpose is not invalid simply because it also serves a regulatory purpose. And there is no doubt that the tax on uninsured income earners would serve a valid revenue-raising purpose--namely, to defray the costs of subsidizing health insurance for those who could not otherwise afford it.

But where is my government subsidizing my health insurance? It seems to me that I am going to be paying that penalty and the benefits therefrom will go to the poor. I am all for the poor receiving medical care at no cost. No human being should be without medical care in time of need. Yet the tax plan does not provide me with coverage. It just takes from my pockets and gives coverage to others, less fortunate.

We need a solution to our nation’s health care coverage crisis. The solution however is not found in punishing Americans who cannot afford coverage. Taxation may be a constitutional response, but it is not a moral one. Those who cannot afford a policy are already suffering. Add onto that a hefty tax and you heap pain upon pain. In the long run, it may be more cost effective and a better solution to just take the prison sentence. This way, everybody is happy – at least everybody on the Democratic side of the aisle.