Judge Upholds ObamaCare, Says Not Purchasing Insurance Is Commerce

by William Teach | February 23, 2011 7:50 am

Semantics, pure semantics

A third federal judge upheld the constitutionality of the Obama health care law[1] 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.

Here we go

The judge suggested in her 64-page opinion[2] 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.”

Judge Kessler added: “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.”

See? Just semantics. Now, look, I’m sure Gladys is smarter than me, but, you know, that pesky Constitution thing was written so that us little peons could easily understand it. And I don’t think the commerce clause means what she thinks it means. Perhaps, for her ruling, she should have consulted a dictionary[3]

Well, OK, the last one isn’t part of the commerce we are discussing, except in terms of Bill Clinton’s presidency (cheap shot). Commerce requires the purchase of something, not the active act of not purchasing something. Furthermore, the federal government was only given the power to regulate interstate commerce, ie, commerce between the states or dealing with foreign nations. Los Federales have forbidden purchase of health insurance across state lines, so there is no interstate commerce, especially if one is not actually purchasing something.

John at Verum Serum[4] writes

I’m fairly confident that the founding fathers would have retched at this idea, but what does a liberal district judge care about them. After all, the Constitution and the Federalist papers are more than 100 years old[5]. Limited government? Unlimited government? Who can tell what those guys were talking about?

This one is going to the Supreme Court, provided that the law is not invalidated first.

Crossed at Pirate’s Cove[6]. Follow me on Twitter @WilliamTeach[7].

  1. A third federal judge upheld the constitutionality of the Obama health care law: http://www.nytimes.com/2011/02/23/health/policy/23health.html?_r=1&partner=rss&emc=rss
  2. 64-page opinion: http://graphics8.nytimes.com/packages/pdf/national/20110223healthMemoMead.pdf
  3. consulted a dictionary: http://dictionary.reference.com/browse/commerce
  4. Verum Serum: http://www.verumserum.com/?p=21802
  5. 100 years old: http://www.verumserum.com/?p=20219
  6. Pirate’s Cove: http://www.thepiratescove.us/
  7. @WilliamTeach: http://twitter.com/WilliamTeach

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