John Doe, et al, v United States: A Proposal for a class-action lawsuit against the Affordable Care Act
The Affordable Care Act of 2010 has caused many debates and arguments from its inception to today, but there may be one way give relief to the citizens of the United States that are now suffering the consequences of this law and its subsequent regulations that bind citizens into a contract, or face penalties for failure to do so. The actions of the enforcers of this contract have shown that they are not entitled to bind the citizens of the United States to this contract by virtue of the tort of Fraudulent Misrepresentation. They have continually misrepresented material facts and intended to deceive the public, knowing the public would rely on the Federal Government’s representations to them in order to make a decision on an act which would have far-reaching repercussions on this generation and on generations to come. The U.S. Court of Federal Claims should rescind the law and all ancillary regulations, and should make those citizens who have lost their insurance and had to pay more for the government sponsored plans whole by repaying the difference in costs, as per the Federal Tort Claims Act of 1964.
"If you like your healthcare plan, you'll be able to keep your healthcare plan, period. No one will take it away, no matter what."[1] President Barack Obama first made this statement in June of 2009, and continued to repeat the statement in one form or another over 30 times up until the week of November 10, 2013. But as early as December 19, 2009, the federal government was aware that “Between 8 million and 9 million other people who would be covered by an employment-based plan under current law would not have an offer of such coverage under the proposal.”[2] After that time, there were numerous writings to various members of the congress to restate these estimates by the CBO.[3] A 2010 report by Senator Tom Coburn predicted that as many as 53 million people would lose their employer-based health insurance.[4] In fact, estimates of how many people will lose their existing plans are now closer to 93 million, depending upon the source. According to the Federal Register:
“Under this assumption, the Departments’ mid-range estimate is that 66 percent of small employer plans and 45 percent of large employer plans will relinquish their grandfather status by the end of 2013. The low-end estimates are for 49 percent and 34 percent of small and large employer plans, respectively, to have relinquished grandfather status, and the high-end estimates are 80 percent and 64 percent, respectively.
The Federal Register stated in 2010 that “Another 25 million people, according to the CBO, have 'nongroup and other' forms of insurance; that is to say, they participate in the market for individually-purchased insurance. In this market, the administration projected that '40 to 67 percent' of individually-purchased plans would lose their Obamacare-sanctioned 'grandfather status' and get canceled, solely due to the fact that there is a high turnover of participants and insurance arrangements in this market. (Plans purchased after March 23, 2010 do not benefit from the 'grandfather' clause.) The real turnover rate would be higher, because plans can lose their grandfather status for a number of other reasons."[5]
Approximately 19 times, President Obama made another misrepresentation of material fact. He continually stated that insurance premiums would be lower.[6] Yet, all facts to date show that insurance premiums are on the rise,[7] and that even the plans offered on Healthcare.gov are far more expensive than the plans people currently have or will lose under the ACA.
While some may say that the President and various members of the federal government misspoke, the fact was that the Affordable Care Act had a provision in it that intentionally made most insurance policies unqualified, even under the so-called grandfather clause. As written, the grandfather clause relates only to policies that do not change in any form from March, 2010, onwards. Since insurance policies are contracts that are renewed yearly, there is little reason to believe that the policy would not change from year-to-year, either in cost or coverage. The very nature of having to renew the insurance policy each year ensures that the contract between the consumer and the company is reviewed by both parties each year and affirmed each year. This fact was well known by the federal government and yet it chose to reiterate false statements in regards to this fact and the impact that it would have on millions of health insurance policies.
Furthermore, as far back as the presidential campaign of 2008, the future President, Barack Obama had proclaimed that families would see a reduction in healthcare costs of $2,500 per year,[8] and he continued to make such statements after the election. In fact, Mr. Obama knew this statement to be based on assumptions that could not be guaranteed, and knew that the stated amount would neither materialize in the near future, nor be seen by citizens as a reduction in their direct costs. Even by the most outlandish of projections, the $2,500 could not be achieved within the first 10 years of the act, nor would it actually land in the citizen’s bank account – it is much more likely that any savings that do materialize will benefit the insurance companies, employers, and federal government.
During the fight to sign the Affordable Care Act into law, the President and various congressional leaders, sought to gain support for the act among the citizens, so that they, in turn, would make it known to their congressman that they wanted this act. Over and over, these agents of the federal government reassured people that they would be able to keep their current health care policies, while others would be able to participate in an insurance market that would offer better policies at lower prices. Many people relied on this information to make their decision to support the Act. The President knew that the citizens must rely on these statements to be true or they would not support the act, even though the act could only work via the cancellation of millions of private policy contracts: The problem is not simply that he said one thing and then did the opposite, but rather that he knew when saying it the first times that the more young people kept their existing insurance coverage the harder it would be to control the costs of the increased coverage for older and more at-risk people under the new law… He knew not only that it was not going to be true but also that he would be the chief actor in its not being true.[9]
While some may argue that it is not possible for the citizenry to sue the Federal Government, there are instruments and precedents in place that would allow such an action. The Federal Tort Claims Act was specifically designed to allow the Federal Government to be sued. While previous acts of Congress such as the establishment of the Court of Claims in 1855, and the Tucker Act of 1887 was a venue for redress, it was not until the Federal Tort Claims Act that the citizenry gained a more viable means for recourse, allowing a person or company to sue for money damages,…for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (28 U.S.C.A. § 1346(b))
It is interesting to note that the great Abraham Lincoln, 16th President of the United States, had called for such means as early as 1861, when he said, “It is as much the duty of Government to render prompt justice against itself in favor of citizens, as it is to administer the same between private individuals.” [10] The conditions for suing the Federal Government are clear, as they are demanding that private citizens and companies enter into a contract which requires monetary compensation be paid by the citizens, to the benefit of the Federal Government, for contracts which they may neither need or want. If the Federal Government is found to be correct in its standing that they have the authority to force the purchase of a product upon the citizenry, they still cannot avoid the duty that both parties to a contract have in order for that contract to remain valid.
Some may claim that the correct course of action would be the use of the Economic Loss Rule, but clearly, the cancellation of contract which had certain costs and benefits forces a citizen into a new contract with higher costs and less benefit, and that is tantamount to a monetary loss. Further, the period between in force policies, or the difference between previous benefits and current benefits, could cause personal injury. The waiting to receive medical treatment can exacerbate a condition that would have previously been nominal.
While all possible points of contention have not been explored in this short paper, it should give some ideas as to the possibility of remedy for those injured by the Affordable Care Act. The fraudulent misrepresentation of the Federal Government over the past four years certainly makes the case that the contract between the citizenry and the ultimate beneficiary of that contract is null and void, and such a claim should be presented to the U.S. Court of Federal Claims on behalf of all citizens who have suffered a loss due to the implementation of the Affordable Care Act of 2010.
[1] Obama, Barack H. Remarks by the President at the Annual Conference of the American Medical Association. 15 Jun. 2009. WhiteHouse.gov Web. 16 Nov. 2013 a href="http://www.whitehouse.gov/the-press-office/remarks-president-annual-conference-american-medical-association%3E">http://www.whitehouse.gov/the-press-office/remarks-president-annual...;. [2] Elmendorf/Congressional Budget Office, Douglas W. Letter to Honorable Harry Reid. 19 Dec. 2009. CBO, n.d. Web. 16 Nov. 2013. a href="http://cbo.gov/sites/default/files/cbofiles/ftpdocs/108xx/doc10868/12-19-reid_letter_managers_correction_noted.pdf%3E">http://cbo.gov/sites/default/files/cbofiles/ftpdocs/108xx/doc10868/...;. [3] Elmendorf/Congressional Budget Office, Douglas W. Letter to Honorable Nancy Pelosi. 18 Mar. 2010. CBO, n.d. Web. 16 Nov. 2013. a href="http://www.cbo.gov/sites/default/files/cbofiles/attachments/hr4872_0.pdf">http://www.cbo.gov/sites/default/files/cbofiles/attachments/hr4872_... >. [4] Coburn, Tom. Bad Medicine: A checkup on the new federal health law. Jul. 2010. Coburn.Senate.gov Web. 16 Nov. 2013. a href="http://www.coburn.senate.gov/public/index.cfm?a=Files.Serve&File_id=722faf8b-a5be-40fd-a52b-9a98826c1592%3E">http://www.coburn.senate.gov/public/index.cfm?a=Files.Serve&Fil...;.
[5] Federal Register. Vol. 75, No. 116. Rules and Regulations Federal Register. Pg. 34552. 17 Jun. 2010. GPO.gov Web. 16 Nov. 2013. a href="http://www.gpo.gov/fdsys/pkg/FR-2010-06-17/pdf/2010-14488.pdf%3E">http://www.gpo.gov/fdsys/pkg/FR-2010-06-17/pdf/2010-14488.pdf>;. [6] Avik, Roy. "Obama Promises To Lower Health Insurance Premiums by $2,500 Per Year."YouTube. YouTube, 20 Sept. 2012. Web. 16 Nov. 2013. a href="http://www.youtube.com/watch?v=_o65vMUk5so%3E">http://www.youtube.com/watch?v=_o65vMUk5so>;. [7] Terhune, Chad. "Some Health Insurance Gets Pricier as Obamacare Rolls out." Los Angeles Times. Los Angeles Times, 26 Oct. 2013. Web. 16 Nov. 2013. a href="http://articles.latimes.com/2013/oct/26/business/la-fi-health-sticker-shock-20131027%3E">http://articles.latimes.com/2013/oct/26/business/la-fi-health-stick...;. [8] Sack, Kevin. "Health plan from Obama spurs debate." New York Times. New York Times, 23 Jul. 2008. Web. 16 Nov. 2013. a href="http://www.nytimes.com/2008/07/23/us/23health.html?_r=4&pagewanted=all&%3E">http://www.nytimes.com/2008/07/23/us/23health.html?_r=4&pagewan...;. [9] Nelson, Colleen McCain. "Aides debated Obama health-care coverage promise." Wall Street Journal. Wall Street Journal, 2 Nov. 2013. Web. 16 Nov. 2013. a href="http://online.wsj.com/news/articles/SB10001424052702303843104579172002892623382?mod=ITP_">http://online.wsj.com/news/articles/SB10001424052702303843104579172... pageone_0>. [10] Lincoln, Abraham. Cong. Globe, Dec. 3, 1861, 37th Cong., 2d Sess. app at 2. See LESTER & NOONE, supra note 5, at §6.104.