Tuesday, February 22, 2011

Another Judge Finds the Health Care Law Constitutional

Judge Gladys Kessler has ruled in a case out of the District Court for the District of Columbia that the Health Care reform law is constitutional, granting the government's motion to dismiss. Unless, as Judge Vinson did in the recent case out of Florida, you ignore most of post New Deal Commerce Clause jurisprudence the decision does not strike me as a difficult one. If the decision not to get health insurance "substantially affects" interstate commerce, which it pretty clearly does, then the necessary and proper clause does most of the heavy lifting.

The logic, which Judge Kessler lays out nicely, is not complicated. The insured end up bearing the cost of the uninsured which drives up prices. Once you have made that determination the commerce clause allows Congress to regulate health insurance generally the necessary and proper clause allows Congress to pass the health care law, including the individual mandate, which was the main provision at issues in this case. As Judge Kessler says "the individual mandate provision is an appropriate means which is rationally related to the achievement of Congress’s larger goal of reforming the national health insurance system."

Judge Kessler also handily dispatches the often voiced argument that Congress cannot regulate inactivity, i.e., the refusal to obtain health insurance:
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.
She goes on to point out that health care is unique in that everyone will eventually enter the market for healthcare, i.e. everyone will need it, and in an emergency providers are obligated to give it to people whether they have insurance or not.

In any event it is an interesting opinion and worth a read but the thing that is most interesting to me is how this will be covered by the media. This now makes three district courts that have ruled in favor of the law against two that have ruled against it. As Steve Benen pointed out in the Washington Monthly after the Florida decision, the negative opinions have garnered far more coverage than the positive ones. Being a pessimist in general and about the media in particular I expect that trend to continue but it is worth watching.

[Related posts:  Engaged Activism]

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