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The Spectacle Blog
A federal judge has upheld the national health care law, making it the fifth ruling on the merits of the legal challenges to the individual mandate.
The ruling by the Clinton appointee, U.S. District Court Judge Gladys Kessler of the District of Columbia continues the pattern of Democratic-appointed judges siding with the Obama administration and Republican judges siding with the plaintiffs in ruling the mandate unconstitutional. Kessler’s ruling comes in a case brought by individual plaintiffs, where as the two decisions striking down the mandate have come in cases brought by 27 states, based in Virginia and Florida.
Like the other decisions upholding the law, the logic of Kessler’s ruling demonstrates how broadly one has to interpret congressional powers to find the mandate constitutional. In something right out of Harrison Bergeron, Kessler notes that Washington has the authority to regulate “mental activity”:
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power…However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
It is worth noting, however, that even Kessler concedes that “there is little judicial guidance” on this question.
Also, Kessler joined the other four judges in dismissing the Obama administration’s fallback argument that the mandate was justified under Congress’s taxing power, ruling “that Congress did not intend the mandatory payment…to act as a revenue-raising tax, but rather as a punitive measure.” Given that even those judges sympathetic to the Commerce Clause argument have rejected the taxation argument, I wonder if the administration will eventually abandon it as the case moves up the food chain.
View all comments (34) | Leave a comment
More Blog Posts by Philip Klein
http://spectator.org/blog/2011/02/22/federal-judge-rules-congress-c
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Real American| 2.22.11 @ 10:00PM
apparently, a federal judge can write an entire opinion without any mental activity.
LarryK| 2.23.11 @ 8:57AM
Why does U.S. District Court Judge Gladys Kessler wear a ponytail?
To hide the inflation tube.
David W| 2.22.11 @ 10:12PM
"there is little judicial guidance" doesn't seem to prevent this mental pygmy from making it up as he goes along. Did he go to law school? I can't believe he did (unless he was sitting behind Obama and copying his notes).
George S| 2.22.11 @ 10:13PM
The only reality being ignored here is by the judge. The commerce clause regulates commerce across state lines for the purpose to make it function as intended, so that it is not hindered by competing or intervening states. But the freedom to engage in commerce still belongs to the individual. If individuals do not engage in a particular act of commerce, then Congress cannot regulate something that does not exist. When I, and others, do not contemplate selling $100 bills for $25 across state lines, then how can Congress regulate that non-activity? But on the other hand, if I purposefully ignore a solicitation to contribute to the DNC, have I not made an economic impact on them? And what if I can afford health care without insurance, judge? That is not impacting me, but you do not make that distinction. It comes down to having Congress be able to regulate the choices you make. What could possibly go wrong with that?
No wonder why there is "no judicial guidance" in this matter. What an ass-robe.
Just Sayin'| 2.23.11 @ 9:14AM
Good, but I would change this: "If individuals do not engage in a particular act of commerce, then Congress cannot regulate"
To:"If individuals do not engage in a particular act of interstate commerce, then Congress cannot regulate"
ironhorzmn| 2.22.11 @ 10:33PM
Liberal judges claim that Americans may now be told when, how, and what to THINK.
Mr. B. Brother, please call your office.
Curly Smith| 2.22.11 @ 10:42PM
The argument is:
- if you buy insurance then you're engaging in interstate commerce
- if you don't buy insurance then you're engaging in interstate commerce
because ultimately we all use health care services. But if you don't buy insurance then your decision adversely impacts others because we, the enlightened politicians, have decreed that health care providers must provide "urgent" care regardless of the recipients ability and willingness to pay and Federal money is used to reimburse some portion of the cost.
Now some say that we, the enlightened politicians, created the problem by creating "free riders" who abuse the system and that the problem would go away if we instituted a "pay as you get treated" system. That method would work but it would reward insurance companies with 30 million new customers. Our solution, on the other hand, forces the insurance industry to accept 30 million new customers, gives us a cut off the top, and moves us closer to nationalized heath care which is the Holy Grail of Population Control.
Ralph| 2.23.11 @ 9:38AM
I thought health insurance was intrastate, that is, not possible to sell or buy across state lines. I also thought the Commerce Clause gave the feds power to regulate interstate commerce, like what car insurance companies do.
We will probably be involved in larger issues if the divisions in the country continue.
Curly Smith| 2.23.11 @ 12:43PM
The Judge, and Democrats, must separate the act of buying insurance, which, as you note, is purely intrastate, from the use of the insurance, which is both intra and interstate because of the public money used to fund services, in order to access the Commerce Clause. By the same judicial "logic" you'll soon be required to buy a Government Motors car, a wind turbine, solar cells, lettuce, or any other product that's wholly or partly funded by public subsidies because your decision to not buy is interstate non-commerce, which is now subject to regulation.
With God all things r possible| 2.22.11 @ 10:53PM
Gladys Kessler has committed, at least mentally, high crimes and misdemeanors which are immediate cause for impeachment and conviction. Hoist away, "Justice" Kessler, while we get the Congress ready for you.
Patriot| 2.22.11 @ 11:32PM
Get the hell out of our heads and off our backs!
I'm so damned sick and tired of these big government hacks.
Monte Schmiege| 2.22.11 @ 11:46PM
This decision, as so many others, is based on false premises, such as flood our system of jurisprudence. If a proposition is not questioned, though it be wrong, it becomes the basis for more wrong. In this case, it's the "serious economic and health-related consequences." These consequences only exist by virtue of the actions of government. Mandatory coverage for pre-existing conditions, mandatory treatment of anyone who shows up at the door--these are the actions of government that create consequences. Why does the government have this right? It should not. Two hundred years of legislation and sloppy jurisprudence have led to a long string of abuses from which we can never recover until government controls mental activity.
Have you considered| 2.23.11 @ 5:53AM
I honestly believe if this law is ultimately found constitutional by SCOTUS, it will usher in the next war for independence. This is a hill I am willing to die on.
Conservative View| 2.23.11 @ 5:39PM
Before we have dead and dieing on the streets of the capital perhaps we might try one thing first. We need to band together as never before, make the WI union numbers look like nothing. We need to stand before each and every state house and demand the same thing. We need to demand that the commerce clause be re-written, or abolished altogether. I favor the second option. Take the commerce clause out of the hands of politicans and we take the club they beat us over the head with and through it away.
Deserat| 2.23.11 @ 6:04AM
As an engineer, I consider the statement "serious economic and health-related consequences" an inappropriate assumption. Mr Schmeige above highlighted it in probably another profession's terminology. How does that judge know there are serious economic and health-related consequences? What is the definition of serious? Why is their concern, where does it say this is their concern? Where are the data points regarding these 'serious' consequences? Is this more serious than runaway inflation or subsidies given to one sector of the economy over the other?
I'm not a lawyer, but I'm appalled at the way in which these arguments are presented and supposedly defended - this would get an F in my basic geometry class regarding definition of the problem and citation of the relevant postulates and theorems.
Buckshot Bill| 2.23.11 @ 8:31AM
So, basically, Republican appointed judges continue to view the Constitution as a document which expressly limits Federal power, and Democrat appointed judges continue to view the Constitution as a blank document to which they can ascribe whatever view is most politically convenient.
Just Sayin'| 2.23.11 @ 9:22AM
OK, are we all now fully clear on why the Federal Government doesn't get to be Policeman, Judge & Jury on issues regarding it's own misbehavior??? States grant the Federal Government a few enumerated powers which are extremely limit to act on their behalf. Forcing citizens to buy insurance isn't one of them - States, NULLIFY and quit banging your head on this rock!
Bill| 2.23.11 @ 9:26AM
Isn't it carved into the wal at the Jefferson Memorial something to the effect of "I have sworn eternal hostility to all forms of tyranny over the minds of men?" Maybe Congress should reconsider if they want that epigraph to remain where it is.
Bill| 2.23.11 @ 9:29AM
Oh yeah, I forgot that the quotation includes the words "on the altar of God" after the word "sworn" so there's even more reason for our government to act to efface the quotation. After all, their excuse could be that Jefferson was a deist and didn't really believe in that kind of God, right?
Bill| 2.23.11 @ 9:32AM
Lastly, I guess for some federal judges, thought isn't covered under the First Amendment.
JShizzle| 2.23.11 @ 9:34AM
Wasn't there an awful Tom Cruise movie about prosecuting people before they committed crimes by reading their minds or something? And yes, liberals remind me of bad Tom Cruise movies!
Allan Yackey| 2.23.11 @ 10:01AM
If Congress has the power to control mental activity that affects interstate commerce, there is literally nothing that is outside of its control. A decision to support or oppose a political party or position necessarily has “serious economic and health-related consequences to every individual of that choice”.
Clearly a decision to support Governor Walker has economic impact beyond his state. A decision to support the Democrat or Republican Party has fiscal implications for all of us. A decision to have or not to have an abortion of a genetically defective child has an economic impact. A decision to buy or not to buy a new automobile every three years has a huge economic impact on every individual in the country.
To demonstrate the absurdity of this ruling, my suggestion to the current Congress is to pass legislation to implement this new found power of mind control. Begin with whatever the mental activity those in power wish to control in those not in power.
Bill| 2.23.11 @ 10:23AM
If Congress can regulate mental activity under the Commerce Clause, what is there to stop the federal government from putting Big Brother cameras a la Nineteen Eighty-Four in every room?
Bill| 2.23.11 @ 10:23AM
And will "Two plus two equals five" in Room 101 now become a reality?
Bill| 2.23.11 @ 10:25AM
Last thing: there's always tarring and feathering and riding miscreants out of town on a rail to fall back on. Are we there yet?
jo blo| 2.23.11 @ 10:34AM
I consider myself as conservative as they get, and I admit to being something of a partisan. That said, I'm not a judge. And it is truly frightening that there is so little thinking among what pass for 'judges' today that decisions on issues this big are made strictly along party lines. It is clear that Obamacare is unconstitutional. And yet the partisanship of 'neutral' judges appointed by democrats shines through. I'd wager the same is true of republican judges with things like the Patriot Act and the like.
A sad, sad commentary on our education system and our culture.
crazy| 2.23.11 @ 11:37AM
OK then. Since the Commerce Clause allows government to regulate one's choices how can there be a "right" to choose?
Al Adab| 2.23.11 @ 11:42AM
So either we make the choice Government approves or we are forced to comply. Only pre-approved "choices" are allowed. Sounds a lot like "...get in line or we will bash your heads in" to me.
ProfChuck| 2.23.11 @ 1:16PM
When government controls health care it gains a legitimate vested interest in the health of the populace and things that impact that health. Don't be surprised when government regulates goods, services, and activities related to health for that is part and parcel of government control that comes as a result of a government "service".
Kadius| 2.23.11 @ 1:55PM
another communist jusdge on the loose, who go to far. keep dangerious judges like this from hurting this country any longer.
lucky for her most of us keep a cool head. i am not sure how long before we hear of the leftist pushing a normal person over the edge. we in the middle will be victims due to the judges and elected offciclas who continue to step on the people, sad but true.
i say pray and pray some more, this is on the edge stuff, crazy judge, nuts to say the least, keep on pushing and see what you cause, you will hurt us all.
Sgt Snuggle Bunny| 2.23.11 @ 2:02PM
Let's re-word some of what the judge wrote:
To put it less analytically, and less charitably, those who choose--and Plaintiffs have made such a deliberate choice--not to file local, state and federal taxes at levels that incur tax liabilities will benefit greatly when they require government assistance, as they surely will, from the free welfare, education, retirement and other social services provided by the government. In short, those who choose not to accept tax liabilities will ultimately get a “free ride” on the backs of those Americans who have made responsible choices to provide for those services we all must face at some point in our lives.
Voila! No 13th Amendment for those of public assistance!
Mike| 2.23.11 @ 4:51PM
So Phillip, are you suggesting that there is physical activity divorced from mental activity and that this is the only kind of activity that can properly be regulated by the government under the Commerce Clause?
Seem like a bit of a stretch to me.
Patriot| 2.24.11 @ 4:39PM
Yes, idiot.