Judge Upholds ObamaCare, Says Not Purchasing Insurance Is Commerce

Semantics, pure semantics

A third federal judge upheld the constitutionality of the Obama health care law 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 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

  • an interchange of goods or commodities, especially on a large scale between different countries (foreign commerce) or between different parts of the same country (domestic commerce); trade; business.
  • the activity embracing all forms of the purchase and sale of goods and services
  • the exchange or buying and selling of goods, commodities, property, or services esp. on a large scale and involving transportation from place to place
  • the act of engaging in sexual intercourse

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 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. 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 in the first place.

More: Gabriel Malor at Ace of Spades

No. No. No. People do not get credit for “responsible choices” when, in fact, they have no choice at all. The individual mandate takes the choice whether to purchase health insurance out of the hands of Americans. The judge’s snide aside — “on the backs of responsible Americans” — simply demonstrates her biased view of these plaintiffs and of the healthcare law. That’s not a legal argument. It’s a policy one.

Crossed at Right Wing News and Stop The ACLU.

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9 Responses to “Judge Upholds ObamaCare, Says Not Purchasing Insurance Is Commerce”

  1. gitarcarver says:

    This is one strange opinion. In it, the judge uses the long discredited statements of number of uninsured and bankruptcies allegedly caused by health care to justify Obama care alone.

    She states that the plaintiffs are liars in that when they say they will purchase health care out of pocket, she says their statements are not true.

    The case she uses to say that Obamacare is legal is a Supreme Court case where a farmer produced more wheat than he was allocated. He only used the additional wheat for his own family. The SCOTUS found that because his additional wheat production affected the market, it could be regulated even though it was for his own personnel use.

    The judge therefore finds that activity that only affects one person locally can be part of the commerce clause.

    Of course, the rational fails when compared to Health Care. First, the wheat farmer was engaged in the selling of the commodity itself – wheat. Secondly, the court never stated that if he had grown wheat for himself and not been growing wheat for the market (or another commodity such as corn) that his wheat production would still be subject to the Commerce Clause.

    Why? Because common sense would say that the moment the Supreme Court did something like that, every home garden that grew anything would be subject to Congress and the Commerce Clause. Clearly that was not the Founder’s intent nor within the scope of the Commerce Clause. Yet it is the “logic” she uses.

    This is a very flawed decision and has a bias written all over it. She accepted every government argument without question while saying that the plaintiffs statements as to the scope of their actions were not true. She even accepted that Obamacare would lower costs even though evidence was presented to the contrary. If the government said it to her, it was as if it was from God’s mouth to her ears.

    You’re right in that this case is heading to the Supreme Court.

    The sooner the better.

    • Excellent points, GT. I can see a few conservative judges taking her arguments to task when it gets to them, a they really have no basis in reality nor in what a very simple constitutional clause states

  2. Elli Davis says:

    If they continue to argue about whether the bill is constitutional or not they will never achieve any positive result which would establish a better health insurance system and the patient will be the one who will suffer under the old disfunctional system.

  3. gitarcarver says:

    If they continue to argue about whether the bill is constitutional or not they will never achieve any positive result……

    Gee Elli, it almost sounds like you believe that it is acceptable to break the law as long as what you perceive as something “positive” results.

    I guess that would mean that you wouldn’t care if an unlicensed real estate agent sold a home / condo / property as long as the client was happy.

    You and I know that you wouldn’t support that at all. Your argument concerning not worrying or dealing with the Constitutionality of Obamacare is clearly disingenuous.

    patient will be the one who will suffer under the old disfunctional system…..

    Doctor, heal thyself. In studies that look at patient from the perspective of “outcome based” rather than “this is what we think health care should be,” the US consistently ranks higher than Canada.

    There are other ways of addressing health care that the Congress never examined due to lobbyists from outside groups. The fact that unions and some companies have gotten waivers from the provisions of the bill, thus increasing the financial burden on small businesses and the middle class even more with no prospect of an increase in “health care” and a decrease in positive outcomes.

    Why is it that people think that the law of the land doesn’t matter? Why is it that anyone would be happy paying more with less benefits?

  4. Doomed says:

    Obama care will go to the supreme court and it will be 4-4…with the deciding judge ruling that it is constitutional.

    Thus we end with a 5-4 ruling for Obamacare which will in effect then allow the government to pretty much dictate to us what we can and cannot purchase in this country.

    No more Pickup trucks without a special use permit….Pickup trucks affect the total commerce by using more gasoline and producing more CO2 then the average Auto.

    Oh wait no more Autos either….mass transit unless you get a waiver and then you must purchase a government approved electric car….buh..buh what if I need to travel accross country……well fly…on a government/commerce approved jet run by unions.

    No more Ammunition for our guns even though you can buy all the guns you want.

    No more Hamburger its bad for you. No more Cola…its bad for you and will raise the price of health insurance.

    The can of worms opened by this ruling will turn America into the scariest place on earth and will literally end in a civil war.


  5. Aaron Worthing says:

    also, according to the judge, the commerce clause not only regulates physical activity, but mental activity, too.

    Don’t believe me? Follow this link.

    Jesus wept.

    • It’s crazy, eh, Arron? I read your excellent post yesterday, and you are completely correct, it would allow the Feds to regulate anything, whether you did or didn’t do it.

  6. captainfish says:

    Well, but aren’t they? Aren’t some regulating your salt intake? Your Fat and caloric intake? Aren’t some localities regulating a legal activity like smoking even in your own home?

    How far does it have to go from just a food pyramid guideline to a mandatory purchase. Eating healthy keeps you out of the hospital.

    Because as everyone knows, if you have to go to the hospital, you have to go to the emergency room. and if you have to go to the emergency room, you will never ever pay and make the other tax payers pay for it…….let alone the ambulance ride.

    Cause, emergency rooms never try and bill for services.

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