No healthcare penalty? No problem: no due process.

I. INTRODUCTION The Patient Protection and Affordable Health Care Act ("Act"), which mandates all individuals to have health insurance and "penalizes"1 those who do not, is unconstitutional for five well-documented and well-argued reasons: 1. The mandate for individuals to purchase healthcare ("Mandate") exceeds Congress's power to regulate commerce among the several states under the Commerce Clause2 of article I, section 8, clause 3 of the U.S. Constitution.3 2. The penalty imposed on individuals who fail to honor the Mandate ("Penalty") is an unconstitutional direct tax because it is unapportioned, as required by article I, section 1, clause 3,4 and by article 1, section 9, clause 4. 3. The Penalty does not satisfy the Necessary and Proper Clause of article I, section 8, clause 18.6 4. The Act violates the Tenth Amendment reservation of unenumerated powers to the states and to the people.7 5. The mechanical, procedural aspects of the Penalty violate the due process guarantee in the Fifth Amendment.8 This Article focuses on the fifth reason: the lack of procedural due process. So far, all courts9 and almost all commentators10 have failed to discuss this fatal flaw. II. WHO MUST WIN WHAT? Contrary to what many have argued, the heavy burden in this litigation is on the government because it must win all the following issues: 1. Commerce: If the Court finds the Mandate violates Congress's power to regulate commerce, the Act would necessarily fail: without the Mandate, the remainder serves little purpose and much harm. Even if the Court found the provision severable (which would be a mistake), the remaining provisions would likely die politically.11 Consider the Act's requirement of pre-existing condition coverage in health insurance plans.12 Without the Mandate, the Penalty would be superfluous: section 5000A(b)(1) imposes the penalty only on those who fail to satisfy the section 5000A(a)(1) mandate. Thus, without the Mandate, nothing would exist to penalize.13 Healthy people could wait to purchase insurance until they had a serious condition. That is akin to allowing homeowners to wait to purchase fire insurance until their house is on fire. This alone would cause all health insurance policies to be actuarially unsound-an intolerable situation which Congress would have to fix.14 2. Unapportioned Direct Tax: If the Court finds the Penalty to be an unapportioned direct tax, the Act would similarly fail: without the Penalty, the Mandate is meaningless. Without the Penalty, the Mandate is unenforceable because the only enforcement mechanism is the Penalty.15 An unenforceable mandate is not a mandate but a suggestion. Widespread polling data suggests how unpopular the Mandate is.16 Common sense suggests many individuals would ignore the healthcare suggestion, particularly young and healthy ones.17 3. Necessary and Proper: Even if the Court finds the Mandate consistent with Congress's power to regulate commerce, and even if the Court further finds the Penalty not to be a tax, the Court could (and should) nevertheless find the Penalty as either unnecessary or improper. The Commerce Clause is not self-actuating; by itself, it grants no enforcement power.18 In contrast, the taxing power is self-actuating; it includes the power to lay and collect taxes.19 To enforce regulations of commerce, Congress must justify the regulation as both necessary and proper.20 If the government fails to carry that burden, both the Mandate and the Penalty fail. If the Mandate fails, the Act (or at least most of it) also fails. 4. Tenth Amendment: If the Court were to find that the Act violates the Tenth Amendment reservation of unenumerated powers to the states and to the People, the Act would fail.21 5. Procedural Due Process: If the Court were to find the Act's procedures for Penalty enforcement lacking procedural due process, the Penalty itself must fail and with it, the Mandate, which would become "the Suggestion. …