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February 23, 2011

District Judge: The Federal Government Can Regulate Your Mindthoughts

The latest ObamaCare ruling, this time from a district judge in Washington, D.C., is here (PDF). Legally, it does not break new ground. Like the other Democratic-nominated judges to get the issue, she finds the health care mandate plenty justified by the Commerce Clause. The Republican-nominated judges to get the case found that it wasn't.

The split is one of worldview. For many Democrats the federal government's power is nearly unlimited or should be. That has been the foundational premise of almost all "progressive" litigation and a great deal of Democratic legislation, which seeks to impose solutions on backward individuals and states that just won't get with the program.

And so Judge Kessler's "struggle" with the question of whether the Commerce Clause justifies forcing every person who takes breath in the United States to buy health insurance merely because they are breathing in the United States isn't much of a struggle after all. She goes the same route as her Democratic fellows who determined that the Commerce Clause doesn't regulate just commercial activity but all decisions which have an economic effect. At least she has the grace to admit this is new ground:

First, the Court must consider whether the decision not to purchase health insurance is an “economic” one . . . or a “non-economic” one.

. . .

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.

Of course, if Judge Kessler is correct, then every "mental activity" that has an economic effect is subject to regulation by the federal government. This would indeed justify a mandate to buy broccoli or GM cars or whatever because your decision not to make such purchases is "economic activity" that affects the price of these goods in the interstate marketplace.

She tries to distinguish a health insurance mandate from these kinds of mandates by saying, essentially, that health insurance is special because there is simply no way any American will ever go their entire lives without consuming health care. Note the casual conflation of health insurance with health care. But also note that this "health care is special" argument works for any market, so long as it is defined broadly enough. For example: no American will ever go their entire lives without consuming food. Therefore, a food mandate requiring the purchase of minimum quantities of food with pre-approved nutritional features would pass muster under Judge Kessler's reasoning.

Her flippant approach to the question is nowhere more apparent than when she chastises the plaintiffs (some of whom want to pay for health care out of pocket and some of whom refuse health care for religious reasons) for being "free riders".

To put it less analytically, and less charitably, those who choose--and Plaintiffs have made such a deliberate choice--not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a “free ride” on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.

No. No. No. People do not get credit for "responsible choices" when, in fact, they have no choice at all. The individual mandate takes the choice whether to purchase health insurance out of the hands of Americans. The judge's snide aside -- "on the backs of responsible Americans" -- simply demonstrates her biased view of these plaintiffs and of the healthcare law. That's not a legal argument. It's a policy one.

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posted by Gabriel Malor at 07:24 AM

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