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Dan Miller

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March 3, 2011 - 10:08 am

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.

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.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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