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Dan Miller

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March 3, 2011 - 10:08 am
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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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