Don’t Want ObamaCare? That Means Obama Can Force You to Have It (UPDATED)
The rulings of both judges focused on affirmative decisions not to buy ObamaInsurance, rather than on the failure to make such decisions at all. That is understandable since the plaintiffs had considered their situations and had demonstrated their standing — necessary for a judge to hear a case — by asserting that they had decided not to buy it and must of necessity set aside the funds needed to pay the ObamaPenalties for failing to do so. When judges remark on issues not before them, what they say is dictum, sometimes viewed as persuasive but nevertheless having no binding authority as precedent. Unfortunately, Judge Kessler’s ruling could possibly be interpreted as meaning that even the failure to make any decision concerning ObamaInsurance places the non-decider in commerce. To do so would require no greater stretch than she made, and that may be its result in the real world from which legal decisions are sometimes divorced.
Decisions to buy ObamaInsurance are not the same as decisions not to buy it; neither is the same as not making any decision. A decision to buy ObamaInsurance must, of practical necessity, normally be followed or preceded by decisions as to where and how to get the money with which to do it and which of several policies to choose, e.g., cost vs. coverage vs. convenience. Sometimes it may be necessary to decide from which of several vendors to make the purchase. These decisions will eventually either lead to spending money to purchase policies in commerce or they will not be implemented and nothing based on them may happen in commerce.
A mere decision not to buy ObamaInsurance is the end of the decision-making process, unless a different decision is made later or unless some provision is decided upon to save the funds which may eventually be needed to pay a possible ObamaPenalty. Until such different or supplemental decisions are to be made, there is no need to think about saving or spending money to buy ObamaInsurance or saving it to pay an ObamaPenalty. There is no engaging in any commerce in medical insurance — interstate or intrastate.
Both decisions to buy and not to buy anything require mental “activity” and are therefore the sole province of (a) sentient beings who (b) actually decide. The failure to make any decision concerning ObamaInsurance is, by definition, no decision at all: it involves not even the “mental activity” of a fleeting thought and is completely removed from commerce. A comatose and brain-dead person must of necessity fail to make such decisions and, indeed, failing to think is all of the mental “activity” in which he can engage. Sentient beings can also for various reasons or none fail to decide whether to purchase ObamaInsurance. Except in some Orwellian sense, the absence of both physical and mental activity in an area said to implicate commerce cannot be equated with either mental or physical activity; nor can such an absence be construed as engaging in interstate commerce for Commerce Clause purposes. It is instead the complete absence of commercial activity, both physical and mental.
It seems highly likely that many of us go through life not making some of the decisions which highly rational and forward thinking people (exemplified perhaps by judges?) would consistently make. We may not think about getting new tires because it’s too much trouble, or we don’t have the time to think about it until we have a flat tire. Thinking about work on the way home, we may not notice that the gasoline is so low that we won’t be able get to work on time the next day. Thinking about how to pay our current bills, we may not bother to try to decide whether or how to set money aside to buy ObamaInsurance or to pay an ObamaPenalty come 2014. Not paying sufficient attention, or being confused by conflicting statements in the media, we may not realize that our present medical insurance policies, if any (and should our insurance carriers not withdraw from the business), may have to be brought into compliance with the various ObamaCare requirements, and the premiums raised to the point that we will be no longer be able to afford them. Reasons for not making decisions about whether to buy ObamaInsurance abound.
I do not think that drawing a distinction between making and not making decisions whether to buy or not to buy ObamaInsurance is by any means frivolous. The questions the distinction raises are unlikely to be resolved until someone (in 2014 or later when the requirement to purchase ObamaInsurance is currently scheduled to go into effect) contests a penalty for not deciding (as distinguished from deciding not) to purchase ObamaInsurance and, therefore, for not purchasing it. Even if the constitutional basis articulated by Judge Kessler for Commerce Clause reliance were legitimate, imposition of such a penalty would be absurd. Again, her decision was based on the thesis that making a decision not to buy ObamaInsurance is a mental activity of sufficient magnitude to amount to activity in commerce. Her decision certainly expands the definition of activity, but even acceptance of that thesis is no basis for an even greater expansion of non-thought and lack of mental activity into the realm of activity in commerce. However, the likelihood remains that many upon whom such penalties may be imposed in the future will be in the “no decision was made” category.
It is to be hoped that ObamaCare will be repealed, defunded or properly held by the Supreme Court to be unconstitutional and that these questions need never arise. Nevertheless, it’s prudent to consider the possibilities — short of deciding not to buy ObamaInsurance. There are plenty of other things to think about and to decide. For whom to vote next year is just one of them.
Kessler’s decision makes it apparent that there is no upward limit of federal expansion by way of the commerce clause. Without a supreme court definition or constitutional amendment, federal authority to act or not act or to regulate citizen thinking is unlimited. The judge, if nothing else has defined an area of real and present danger of political abuse.
What I really want to know is, how is forcing people to opt-in to 0bamacare or some other “mandate-approved” health-care plan have any impact on people who are already below the poverty level or already on welfare? What about homeless people? What about the illegals?
This is nothing more than a power-grab to strip us of not only our own [very personal) choices and individual liberty but to have the government’s fingers in one of the biggest pies.
Ever since the big daddy .gov got involved in medical care, prices have sky-rocketed into the ridiculous.
Also, people go bankrupt every day for poor investment choices, drug addiction, food addiction, spending sprees on credit or gambling problems etc. ad nauseum. Why not mandate to force everyone to pay for “stupid choices” insurance too whilst we are at it?
How ’bout it, Moochelle? Take that fatty rib out of your greasy mouth when I’m talking to you, party girl!
“How ’bout it, Moochelle? ”
That’s Chewbacca to you.
Okay, Okay. TRUCE. You don’t insult Chewy and I won’t insult cows.
The day I allow the U.S. gov’t to overreach even further into my life by my purchasing health care whether I like it or not is the day I give up my citizenship.
I’m not doing it – never. Let the devil take the hindmost. I don’t care about law on this one. I’m making my own laws for my life based on being an American in America. (Well, not right now but you know what I’m saying).
If I decide not to purchase a car,I am engaging in commerce?Lunacy. I can think of instances where people who do not purchase health insurance do not ultimately become a burden to their fellow citizens.Someone may have religious convictions that conflict with seeking medical care.Someone`s parent and or siblings may be doctors and have access to free or nearly free medical care.Someone may be extremely wealthy and just doesn`t want to be bothered, especially with the direction medical care is going in this country.Quality medical care is always available for some price somewhere.
Let`s be honest,Judge Kessler is just a true believer in Socio/Fascism.
I was thinking the same thing with the car analogy, but took it a step further. The car will be a ‘green’ car and by not buying it you are affecting not only the lives and health of others (by polluting) but you are affecting the working class by not supporting job creation. The provision to be known as the anti-commerce provision of the commerce clause.
It’s not supposed to make sense donchaknow
Actually, I’m expecting a number of Obama executive orders if Obamacare isn’t ruled unconstitutional by the Supremes. First, you’ll have to buy a GM Chevy Volt & if you don’t, a $10K fine. Then you’ll have to do your checking or saving at Bank of America or Citi & if you don’t, a $10K fine. Need insurance? Well, even if you don’t you’ll have to buy an AIG policy & if you don’t, a $10K fine. After all, they all owe the govt a ton of dough & it’s our patriotic duty to do what’s good for the country. Where would it stop?
There are plenty of other things to think about and to decide. For whom to vote next year is just one of them.
That’s one thing I DON’T have to think about. Anyone but Obama.
the scary part about these abbott and costello/ beavis and butthead comeday sketches, i mean, the statist handbook’s argument parameters, is that they are very reay and very implicative
^^ *very real
The really scary part is the quality of the judiciary: An equitable system of justice is the greatest achievement of a civilization. Without it, everything crumbles.
I think the issue is simpler than it may appear. The distinction between “decision” and “commercial activity” is clear: decisions, and commercial acts (or activities) are different steps in human behavior. Decisions are mental, commercial activities are physical. The commerce clause must refer to a physical activity.
By her own logic, would judge Kessler convict someone who decided to commit a crime, even though no physical steps towards committing a crime were taken?
Now the government is coming after us for thought-crime, you’ve got that right.
By breathing I’m contributing to global warming, therefore I’m automatically anti-humanity, or evern worse, a conservative.
But if I refuse to breathe, I won’t be able to fund obamacare which might be an even worse crime.
I’m torn. Fortunately, Judge Kessler will have the answer. An increase in my taxes will be required, I suspect.
No, but you will be compelled to supply DNA to help fundamentally understand differential outcomes in diagnosis and treatment, (and moreso to determine how you could possibly think that way)
The is like that old Vanderbilt joke …
Vinson: This is so simple that any Vanderbilt law grad could understand it.
Obama: I went to Harvard Law School.
Vinson: .. then I’ll talk a little slower.
The argument seems to eventually run to, “If someone doesn’t buy health insurance then gets sick…” What if they never get sick?
The slippery slope is that by this logic citizens can be compelled to not only buy brocolli but eat it three days a week. Charred meat will be illegal and eventually beef.
No worries. When enough Juans and Juanitas bring their third-world diseases to America, we’ll all be sick!
The judges’ decision also means that if you choose to break a law or choose not break a law, you can be prosecuted in either case. The judge feels these are the same. Only the government knows what is right or wrong, and it may change day to day.
Given the esoteric interpretation of the Commerce Clause by Obama’s minions it wouldn’t be much of a stretch to suspect that they might be trying to expand the interpretation of the Commerce Clause to encompass all kinds of behavior, as in, controlling government disapproved of behavior. If a person’s behavioral trait is to prioritize items of importance and sideline or ignore those that are less pressing, as in, forgetting to buy ObamaInsurance, and this is upheld by the Supreme Court as coming under the CC, Obama and his minions could say that all sorts of behavior need to be controlled for the greater good. The Obamacare bill might be a Trojan horse, and what better place to hide it than in the fine print of a twenty-five hundred page bill? Dems might be setting the stage for one whopper of a power grab.
I’m sure those staffers were smart enough to bury a contingency clause or two in there somewhere.
BY THE BYE, FROM WHAT PLANET DID SHE COME………..FROM?
JUST ASKIN’
LOL !!!
I’m fairly certain she came from the same planet her husband Jar Jar Binks came from.
This isn’t a slippery slope issue. As this legal interpretation shows, it’s clear we’re hanging over the edge of the crevasse. (My fingers are growing tired, and I bet yours are too.)
Is my decision to not purchase sugar a health decision? (Michelle says, “Yeah!”) Or a commerce decision? (Barry says, “You’re negatively impacting the economic landscape by not supporting the sugar market.”)
What a load of … hooey.
So let me be clear: I’m choosing to not decide about buying, instead of choosing to decide not to buy forced-purchase healthcare insurance.
Decartes is reported to have said, “cogito ergo sum” – I think therefore I am. When asked whether mere thought might be the equivalent of physical activity he said, “I think not.” He immediately disappeared in a puff of logic.
Thanks for the chuckle.
Inquiring minds want to know: Was that before or after he bought healthcare insurance? And is logic a covered pre-existing condition?
(Wait, I think I might know the answer to the second question …)
The perfect fascist state, courtesy of the US Supreme Court and the Democrat/progressives.
If the individual mandate is judged constitutional, then the constitution as interpreted is no longer a legitimate document but rather a flimsy cover for any sort of government tyranny.
Great article. Thank you for keeping the focus here. We can’t afford to take our eyes of this huge boondoggle of a scam.
Mr. Miller:
“It is to be hoped that ObamaCare will be repealed, defunded or properly held by the Supreme Court to be unconstitutional and that these questions need never arise. Nevertheless, it’s prudent to consider the possibilities — short of deciding not to buy ObamaInsurance.”
A very thoughtful piece, but too much lawyerspeak obscures the bottom line.
The fundamental fact is that ObamaCare is Government Slavery.
If you do not purchase ObamaInsurance as dictated, then your earnings will be attached by the IRS, and you may even be incarcerated if you insist on your notion of being a free citizen who has possession over his or her own body.
Essentially, the government will place a lien against you for failure to maintain a contract with a designated commercial entity to maintain your body, and since liens are placed against property rather than people, then you cannot escape the fact that under ObamaCare, you are now property of the government.
You are a slave, and we know of one rather decisive way to deal with slavery, do we not?
“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.”
Of course Kessler refuses to see the that the true crux of the problem she identifies is not that people cannot or will not pay for the medical services they may or may not require, (or even want), but rather the government’s law mandating that such services be provided to them.
This may sound callous of me, but I note that a very great many of the people who howled the longest and hardest for ObamaCare, supposedly based on their “economic need”, were also driving very expensive automobiles and had the latest cell phones on their hips or at their ears.
Both of these types of possessions imply a monthly bill quite in range of what a private medical insurance policy would cost, (I know, because I have paid for a personal policy).
And while Judge Kessler’s lawyerly semantics may be entertaining and educational for other jurists and lawyers, I also think they serve to obfuscate the true motive behind her ruling…namely that the ObamaCare Medical ID Tag manufacturers have already received their contract form the Odministration.
I believe this is how future ObamaCare Patients will be identified:
http://www.technovelgy.com/graphics/content07/rfid-ear-tag.jpg
Thank you for acknowledging the factual mistake. However, please note that the first sentence now needs to be rewritten.
You people are giving Judge Kessler too, way too much ,credit in responding to her opinion. She is a complete idiot. There is no logic to her opinion. Not only that her logic is based upon palpably erroneous speculations. There are plenty of people who are perfectly willing and able to pay for whatever health care they want. There are plenty of people who will get killed in accidents or be murdered and never require health care. Her asserion that the government couldn’t force you to buy a GM car because you aren’t entitled to get a car is totally ridiculous. Her theory that because a hospital has to treat you means you don’t have to pay is nonsnese. Just because it has to treat you doen’t me you don’t have to pay.Like I said she is another dimwitted Clinton appointee.
May I be the first to say…
Thank GOD you are retired!
Never QUIT your retirement! Ever.
Mesotheliomaaaaaa
Let us take a Talmudic approach: Move to the extremes. Suppose no one chose to purchase health insurance coverage. And on the other hand, suppose everyone chose to purchase health insurance coverage. Unfortunately, there can be more than two sides to every argument. Suppose the government decided to purchase health insurance coverage for everybody. Or suppose that the government decided NOT to purchase health insurance for anybody. Is the decision by the government to purchase health insurance the same as “everybody” deciding to purchase health insurance? On the other hand, is the decision by the government not to purchase health insurance for anybody the same as the decision by “everybody” not to purchase for themselves.
Of course these arguments leave out the “excluded middle,” where things can be “a little of this and a little of that.” However, the consequences for not engaging in this discussion at the extremes is itself consequential.
Based upon these discussion, we might decide that those who use more services should pay more in the form of future debt accumulation against all inheritors. Or we might decide that taxes for everyone would rise or fall based upon the last year’s total accumulation of medical debt.
However, whatever our decision as a society, I am 100% certain that no one would choose ObamaCare as the norm for the provision of medical services.
Suggestion:
What about a Costitutional Emendment that define “Commercial Activity must be an willing activity that involve two or more entities” or something like this. This would kill any “extended” interpretation of the Interstate Commerce Clause.
If government pays for health care government must control what people eat, how they spend their leisure time, etc.
If government pays for housing of the lazy or irresponsible government must control how they spend their money
If government pays for food for the lazy or irresponsible government must control how they spend their money
If government of a country determines to interfere in the choices of nations that have never had nor ever apparently wanted, for the last 5,000 years, to live in a democracy, government must be prepared to stuff these people into a mold they will reject for the next 5,000 years.
If people choose of their own free will any options offered from sugar to suicide…including yes, irresponsible gambling, the consequences belong to them not me via an intrusive group of bureaucrats.
Government control of people’s lives is the unintended consequence of earlier interfering actions and once the government is allowed to interfere the dimension of that interference expands exponentially.
This administration is using this ‘unintended consequence’ to turn us into one of those nations without democracy.
G. Hugh Bodell
A Libertarian
We have a tendency in America to argue for or against a concept based on our own personal philosophy or view of the world, what advances our personal interests, or the interests of our party, family, organization, or region. Perhaps viewing the issue from a management or systemic perspective might result in innovative approaches to the issue. The American national mindset, citizen philosophy, lack of citizen motivation to be proactively healthy, and governance model make the socialization of health care in America very problematic, particularly at this point in time. A country needs to know its limitations.
Can someone -Delia, Retired Lawyer, Bodell, anyone – explain to me why, if health care is a “right”, that legal, optometric, podiatric, dental, and veterinary care aren’t? Where’s the logic in this? If the feds can force anyone to purchase health care insurance, couldn’t they also force anyone to purchase legal insurance? Dental insurance? Optometric insurance? How about ‘preventive’ legal care (e.g. will preparation)? Where does it stop? Why hasn’t someone brought this up before? Am I a lone voice in the wilderness?
RTT, I was wondering about that myself…especially regarding “dental insurance”, because, let’s face it, a lot of us incur huge dental bills from either neglect or fear or bad habits.
Where does this stop? It won’t if ‘we the people’ don’t stop it (well, for as long as ‘we the people’ even have a stinkin’ voice and vote).
Picture grocery stores where everything is digitally automated and scanned (we’re getting there) and a government mandate where you are weighed as you enter a grocery story and then blacklisted from certain food items you can purchase. Or, better yet, you have to ‘scan in’ your personal info to every grocery store which stores your current bmi/health/blood-tests/stds/whatnot and ‘shares’ this information across a broad ‘network’ of grocery stores to determine if you are ‘worthy’ of certain food purchases or not.
Too Orwellian and ‘out there’? Let’s hope so.
Mans basic nature is economic. There is nothing in your life that is not economically related. Everything you do, or don’t do, is related to economic decision making. Deciding where to live? Economics. Evaluating your diet? Economics. Courting your desired spouse? Living a lifstyle in accordance with a religion? Economics. Having children, dying, teaching, socializing? All economically related- economic decisions, economic impacts, cost benefit analysis, requirements for sustenance, consumption of resources, organizing inputs and outputs of multiple people, trading negotiating and influencing, on and on. I know what the text books say is the definition of “economics.” But that is the Economics text book, economics being a science, science being a subordinate discipline practiced to inform the parent endeavor of philosophy. The philosophical definition of economics is what I have listed above, and the court is trying to move the definition of economic activity toward the existential defintion instead of the material definition.
So let me see if I’ve got this straight. The commerce clause gives the federal government the right to control interstate (between states) commerce and they’ve made it against the law to have insurance companies compete between states but since I’m buying or not buying insurance from within my state and not from another state, they can still force me to buy it?
And where in the constitution does it say anything about you or me being required to pay for someone else’s health problems if that person can’t afford to do so?
I have a really cool idea, lets stick to the actual enumerated powers and throw all the unconstitutional agencies and programs in the trash where they belong. Read the 10th amendment please. Follow it. It’s the law.
CB: And where in the constitution does it say anything about you or me being required to pay for someone else’s health problems if that person can’t afford to do so?
I’ve read the U.S. Constitution multiple times, and the conclusion I have reached is that it contains nothing about being my brother’s keeper. However, if I am going to be forced by my government to be my brother’s keeper, I am going to put him on a strict diet, just sufficient enough for sustenance, so that he won’t develop diabetes, plus make him run 5 miles per day, cycle(stationary) 12 miles per day, lift free weights (5 sets biceps, 5 sets triceps, 5 sets on the bench press, 5 sets on the leg curl/extension, 5 sets squats, each with increasing weight amounts), and do 50 push-ups & sit-ups every day. No eating anything containing preservatives – everything must be organic fruit or whole-grain. Oh, and he can’t have or ride a motorcycle, parachute out of a plane, skateboard, go 4-wheeling, or drive or ride in a non-roll cage car without a helmet and fire suit (like the NASCAR cars). And swimming is out. No scuba diving. No fishing or hunting. No climbing on a ladder. No working at anything other than a desk job. And no driving in inclement weather. But other than that, I’d like for him to have a lot of fun and enjoy himself.
This is what happens when our freedoms are stolen from us, just like the present administration is doing. His goal is to make us all slaves to the State (except his inner circle, of course), with no choices, voices or freedoms.
This may be off topic, but….
Jesus said that whatever sin you’ve committed in your heart, you have already done it. I’m not sure what to think now.
Yesterday, I intended to take the trash out, but I forgot. Forgetting is an activity, but according to the judge, my thoughts of intention are now an activity also. So what did I actually do wrong?
I’m not sure where Judge Kressler draws the line. What if I were to intend to buy insurance, but due to circumstances that arise, I fail to do so? Would my choice as declared in my thoughts declare my innocence? Or does my active failure despite my intentions testify to my crime?
Judicial Activism – gotta love it.
http://samschaos.blogspot.com/2011/02/judicial-activismill-know-it-when-i-see.html
“Imagine there’s no money—” Oh yea, we don’t have to imagine that anymore. My bad.
From the Free Online Dictionary:
Commerce:
1. The buying and selling of goods, especially on a large scale, as between cities or nations. See Synonyms at business.
2. Intellectual exchange or social interaction.
3. Sexual intercourse.
Let’s see: (1) seems to imply I actually have to buy or sell something. (2) This gets a little stickier, because I can talk with someone about buying something? (3). Oh no!! I don’t like where this is heading…
If enough Americans refuse to buy obama care , what is obama going to do ? We all can not be put into jail and if we do all go to jail you get free medical. Obama knows obama care is unconstitutional or he would fast track it to the supreme court. Maybe he is holding back on the supreme court till Reid, Pelosi and Obama have the obama care decision bought and paid for. We can not get all the people to buy auto insurance and obama going to try and make us buy obama care. You can get a free pass though if obama likes you and gives you exemption. Now that`s the American obama way, pay to play!
Talk about sacred cows, the commerce clause is the Feds power to take over total control of the country. Of coarse this is in violation of the Constitution, but who cares. Until “We the People” get involved congress will continue whittle away at the Constitution and soon nothing will be left of it. These career politicians need to go, same thing for activist judges.
Mr Miller, et.al concede more than necessary. The Commerce Clause allows the Federal Government to regulate only commerce between the States. It does not allow the Federal Government to regulate all commerce, or anything that affects commerce.
Obama is reaching for the Socialist brass ring, where the Government can control our very thoughts.
The federal government today advised Judge Vinson that “it will appeal his Jan. 31 decision striking down President Barack Obama’s health-care reform legislation.” (emphasis added)
If the appeal is to be filed in the future, as the article’s use of the future tense suggests, the article does not indicate when. I find all of this slightly confusing because I seem to recall that a notice of appeal is filed with the appellate court (with a copy provided to the trial judge and the various parties); I have not practiced law since 1996 and my recollection could be wrong.
In any event, the U.S. Court of Appeals seated in Atlanta will set forth a briefing schedule and eventually act on the case unless it asks the Supreme Court to do so on an expedited basis now. The linked article does not indicate whether the federal government requested expedited consideration as Judge Vinson had requested.