ObamaCare Held Constitutional

February 25th, 2011

By Dan Miller

In a sixty-four page decision in Mead v. Holder, Judge Gladys Kessler of the U.S. District Court for the District of Washington, D.C. on February 22nd rejected constitutional objections to the mandatory insurance provisions of ObamaCare, holding them valid exercises of power under the Commerce Clause.

Judge Kessler held that a decision not to purchase insurance is “activity” no less than the actual purchase of something.  That such a decision does not amount to activity for purposes of the Commerce Clause was the plaintiffs’ principal contention.

Both the decision to purchase health insurance and its flip side — the decision not to purchase health insurance — therefore relate to the consumption of a commodity: a health insurance policy. It therefore follows that both decisions, whether positive or negative, are clearly economic ones. …

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.

Her reasoning was essentially that regardless of present decisions about the purchase of insurance, we don’t know and have little if any control over whether we will eventually need medical care; if we need but don’t pay for it, the federal government requires that others pay for it for us. A decision not to purchase health insurance “is not simply a decision whether to consume a particular good or service, but ultimately a decision as to how health care services are to be paid and who pays for them.”  She also reasoned that in view of ObamaCare’s prohibition against excluding preexisting conditions from coverage, people might wait until they are really sick to obtain coverage, thereby increasing coverage costs for all. “Thus, without § 1501’s individual mandate, the ACA’s efforts to end discrimination in insurance on the basis of pre-existing conditions would be financially untenable.”

There is no discussion in the decision about the folks who simply plod along in blissful contentment, making no decisions at all about health insurance; it would be interesting to see a case brought by someone (and there are probably more than a few) like that.  Are such non-decisions the equivalent of decisions and therefore of activity?

Finally, she rejected the claim that the plaintiffs, who believe that acceptance of medical care violates their religious beliefs, must be exempt. She found that “(1) § 1501 does not place a substantial burden on the exercise of Plaintiffs’ Christian faith, and (2), even assuming that it does, it is the least restrictive means of serving a compelling governmental interest.”

As Judge Kessler acknowledged, all previous Commerce Clause cases involved physical rather than mental activity (decision-making) so there is little (?) judicial guidance on whether controlling mental activity falls within Congress’s power.

The decision of Judge Vinson holding the mandatory insurance provisions unconstitutional since no cognizable activity is involved in deciding not to purchase insurance makes a lot more sense to me. Next step? Very likely the Court of Appeals for the D.C. Circuit.

(This article was also posted at The PJ Tatler.)

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5 Responses to “ObamaCare Held Constitutional”

  1. larry ennis |

    So, if I understand correctly, Kessler has decreed that the Commerce Clause takes precedence over the decision making process. The Federal Government can violate my right to make a my own choice. A shining example of things to come? A form of mind control?
    The President and Justice Department are already manipulating enforcement of laws they consider a detriment to their agenda. Voting Rights Act and the Marriage Rights Act for example.

  2. Dan Miller |

    No, Larry, you miss the point entirely. Let me try to explain:

    Although Judge Kessler was appointed by President Clinton and her political connections seem to have been principally with the Democratic Party, we all know (of course we do!) that politics, ideology and the like are of no consequence whatever in how judges decide questions of constitutional law.

    Judges’ decisions are always made after due deliberation, taking fully into account all aspects of all relevant facts and of all relevant law. Indeed, that is exactly the way that everyone in the United States (even those who are not judges) decides whether to buy medical insurance. For that reason, Judge Kessler’s decision might even be said to make sense.

    Obviously, there are in the United States (where all women are pretty, all men are handsome and all children are above average) no silly, irresponsible folks who, grasshopper like, don’t (like judges) give full attention to what the future may hold and who just spend their copious funds on wine, women and song without bothering even to think about whether they should instead spend them on more practical stuff like insurance.

    Nor, in our prosperous, stimulated and quickly recovering country of plentiful redistributed wealth for all, are there any who simply can’t afford health insurance regardless of the cost and who have (or at least until the issuance of Judge Kessler’s decision had) no need to trouble themselves by making any decision whether to buy or not to buy it. Now, should there be any (even though none exist) and should they not decide to purchase insurance with money they don’t have they must be “deemed” to have made the decision not to purchase it. Alternately, they should be required to think and to decide in the abstract whether they would buy insurance if they could do so; under Judge Kessler’s reasoning, that would probably be enough to penalize them should they not decide to spend the funds they don’t have on insurance.

    A decision to purchase insurance can take much more time and effort than even an actual decision not to do so. Having decided to purchase insurance, it becomes necessary to decide which of multiple policies are the best in terms of coverage and cost; then it becomes necessary to take affirmative actions in commerce to implement those decisions. A decision not to purchase insurance, or a failure to make any decision at all on the matter, requires no such affirmative actions in commerce; or at least until Judge Kessler’s decision it didn’t.

    Under Judge Kessler’s reasoning the failure to decide to purchase insurance is, evidently, the same as the “action” of an affirmative decision not to purchase it and the failure to act is the same as acting. Therefore, the unintentional as well as the intentional failure to engage in commerce by purchasing insurance constitutes acting in commerce. Hence, a failure to decide not to commit murder is tantamount to a decision to commit it and therefore presumably to premeditation. Q.E.D. I hope all of this is crystal clear now. There may be ways to put all of this more metaphysically but I can’t decide whether to try to think about them and hence won’t.

    In any event, if there are any people subject to the mandatory insurance provisions who don’t actually make such decisions rationally and after full consideration of all factors, Judge Kessler may never have encountered them and they apparently were not called to her attention.

  3. larry ennis |

    Damned if I don’t feel better already.
    It’s scary when we have to consider who appointed a judge while trying to understand the rationale behind their rulings.
    Needless to say, our President is hard at work trying to end all this Constitutional BS once and for all.

  4. Dan Miller |


    I am very happy that I was able to make things perfectly clear and thereby to set your mind at least partially at ease. It may eventually be my pleasure to tackle other obscure points of law to that same end. Unfortunately, I am presently unable to decide when, how or which because I am preoccupied with trying to decide whether to make any decisions concerning ObamaInsurance.

  5. Tom Carter |

    It’s really discouraging that we continue getting decisions from judges on this issue that simply reflect their own biases. I suppose that will continue at the appeals courts and in the Supreme Court. Once the Supreme Court rules, at least we’ll be done with this part of the health care reform mess. Then what? If the law is ruled unconstitutional (all or part), do we just continue as we have been, with health care costs out of control and millions of people without health insurance?

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