Federal Judge Upholds Individual Mandate By Eviscerating The Constitution
Judge Gladys Kessler upheld the constitutionality of the Affordable Care Act's individual mandate, but she did so by essentially ruling that the Interstate Commerce Clause means whatever Congress wants it to mean.
As Alex Knapp noted yesterday, earlier this week Judge Gladys Kessler of the U.S. District Court for the District of Columbia became the latest judge to weigh in on the constitutionality of the Affordable Care Act, issuing an opinion upholding the Act and, in the process, essentially saying that there are no limits to Congressional power under the Interstate Commerce Clause:
A third federal judge upheld the constitutionality of the Obama health care law on Tuesday, reinforcing the divide in the lower courts as the case moves toward its first hearings on the appellate level.
Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act. Two other federal district judges, both appointed by Republican presidents, have struck down the law’s keystone provision, which requires most Americans to obtain health insurance starting in 2014.
One of those judges, in a case filed in Florida, ruled that the rest of the law could not be severed from that provision, and suggested that the entire act was therefore invalid. The Justice Department, which represents the Obama administration in the cases, has asked the judge for clarification of his ruling, which left states confused about whether to continue carrying out the law.
Although the issue will almost certainly be determined by the Supreme Court, each lower court ruling contributes to the balance of legal opinion that the justices will consider. More than 20 challenges to some aspect of the sprawling act have been filed around the country. Oral arguments in the first appellate reviews are scheduled for May and June.
The District of Columbia case was filed by five individuals represented by the American Center for Law and Justice, a conservative Christian legal group.
Judge Kessler adopted the government’s position on whether Congress’s authority to regulate interstate commerce is so broad that it can require people to buy a commercial product. Past Supreme Court decisions have established the standard that Congress can control “activities that substantially affect interstate commerce.”
The judge suggested in her 64-page opinion that not buying insurance was an active choice that had clear effects on the marketplace by burdening other payers with the cost of uncompensated medical care.
“Because of this cost-shifting effect,” she wrote, “the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage.”
But it’s Kessler’s determination that inactivity and activity would both be regulated that is really the most troublesome:
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. See Thomas More Law Ctr., 720 F.Supp.2d at893 (describing the “activity/inactivity distinction” as an issueof first impression). However, this Court finds the distinction,which Plaintiffs rely on heavily, to be of little significance. I tis pure semantics to argue that an individual who makes a choice toforgo health insurance is not “acting,” especially given theserious economic and health-related consequences to everyindividual of that choice. Making a choice is an affirmativeaction, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is toignore reality.
This is really quite shocking in the extent to which it expands Congressional power. Thoughts are now actions. Under this logic, there’s nothing the Federal Government cannot regulate, as long as they can point to even the most remote, hypothetical connection to the economy, even a connection that doesn’t exist in the present but may exist in the future. Staying home rather than getting in your car and driving to the mall would be something that Congress could regulate if Judge Kessler’s logic becomes the law of the land.
Ilya Somin notes:
This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”
This strikes me as being far beyond the original intent behind the Interstate Commerce Clause.
Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.
The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.
In 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:
Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.” Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
While I remain skeptical of the chances that the Supreme Court will actually strike down the individual mandate, it strikes me that a Supreme Court decision that follows the logic that Judge Kessler did in her opinion would be incredibly dangerous. It would essentially mean that there are no longer any limits on the power of the Federal Government, and that there isn’t any part of an individual’s life that cannot be subjected to Federal regulation. If that happens, the Constitution would be nothing more than a worthless piece of paper.