Don’t Want ObamaCare? That Means Obama Can Force You to Have It (UPDATED)

March 4th, 2011

By Dan Miller

The tortured logic of Judge Kessler. (UPDATE: “Judge Vinson’s Ruling on the Federal Government’s Motion for ‘Clarification.'” )

Judge Kessler’s February 22nd ObamaCare decision held that a decision not to make a government-mandated purchase in interstate commerce is economic activity and therefore activates the federal government’s authority under the Commerce Clause. This presents a bit of a conundrum: even assuming that she is correct, how about the failure to make any decision at all whether to buy or not to buy? Does that failure to engage in a decision-making process, which she determined to be activity, also constitute activity in interstate commerce? If so, George Orwell would be disappointed that he hadn’t lived to read about it:

Both the decision to purchase health insurance and its flip side — the decision not to purchase health insurance — …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.

The distinction goes well beyond mere “semantics” as Judge Kessler contended — and it does not seem to be anti-semantic to suggest that Judge Kessler was confused.

Attempting to buttress her decision, she noted that people who get ill or injured but do not have insurance or sufficient funds must be provided health care at the cost of others — because the federal government requires it:

in contrast to other markets for goods and services, if an individual is sick or injured, medical providers may not refuse basic medical services under federal law, regardless of the individual’s ability to pay. See Emergency Medical Treatment and Active Labor Act of 1986, 42 U.S.C. § 1395dd (requiring all hospitals participating in Medicare and offering emergency services to stabilize any patient who arrives, regardless of whether the patient has insurance).

That everybody will eventually need medical care, and that if they don’t pay for it others must do so, were the principal bases for rejecting the argument that if the federal government could require someone to purchase ObamaInsurance it could force him to purchase broccoli, houses, or automobiles in furtherance of some governmental policy; there is no federal requirement that broccoli or automobiles be given free to those who can’t or won’t pay for them.

Plaintiffs’ argument that the Commerce Clause power does not extend to regulations which require individuals to enter a market they would otherwise choose to remain outside of is irrelevant to this case. Here, Congress enacted § 1501 based on its understanding that (1) all individuals inevitably consume medical services and (2) when they do consume those services, the way in which they pay for them substantially affects market prices.

In response to similar arguments by the government in the Florida case, Judge Vinson of the United States District Court for the Northern District of Florida, Pensacola Division, observed that medical services are not unique: nobody can, or for long does, opt out of the food market and everybody also requires some form of housing and transportation:

The defendants’ argument that people without health insurance are actively engaged in interstate commerce based on the purported “unique” features of the much broader health care market is neither factually convincing nor legally supportable.

Judge Vinson also disagreed with Judge Kessler’s thesis that merely to decide not to act is to act.

“Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.

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4 Responses to “Don’t Want ObamaCare? That Means Obama Can Force You to Have It (UPDATED)”

  1. larry ennis |

    I sometimes think that the health care law is becoming a cover-up for other more questionable White House activities. Recent disclosures of improper actions by the DOJ and Attorney General Eric Holder is an excellent example.

  2. Tom Carter |

    Talk about a slippery slope — if Judge Kessler’s concept holds up, the government is going to be in the business of determining whether we actually decided not to do something or whether we didn’t decide to do or not do something. The whole thing is ridiculous, and I can’t imagine an appeals court (even the 9th Circuit) going in that direction. Even if that were to happen, I don’t think the Supreme Court would go for it.

    If the Administration really wants to save the health care reform law, they need to preempt all this by finding a way to take out the individual mandate and still have the rest of it be fiscally workable. I don’t know if they can do that, but they had better try.

    Larry, what exactly do you think the health care law is a cover-up for? I’m sure you have some grand conspiracy in mind, but I’d be at least mildly interested to know what it is. Does your DOJ reference have to do with the Black Panter voter intimidation case, or maybe the Administration’s decision not to defend DOMA in court? If so, how in the world does that relate to some kind of cover-up behind the health care law?

  3. Dan Miller |

    Decartes is reported to have said, “cogito ergo sum” – I think therefore I am. When asked whether mere thought might be the equivalent of physical activity he said, “I think not.” He immediately disappeared in a puff of logic.

  4. Tom Carter |

    Ambrose Bierce, cogitating on that, decided it would be better to be less certain, as in “Cogito cogito ergo cogito sum.” Mae West, on the other hand, might have said, “Estne volumen in toga, an solum tibi libet me videre?” As to ObamaCare, some would undoubtedly say, “Non gradus anus rodentum.”

    Given the direction we may be headed, per Judge Kessler, perhaps we should change the dictum on the Seal of the United States from “E Pluribus Unum” to “Cogito Ergo Pecco.”

    Pax vobiscum, y’all.

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