Third ruling upholds health law
on Feb 22, 2011 at 11:43 pm
A federal judge in Washington, D.C., adding further to the stack of rulings on the constitutionality of the new federal health care law, ruled Tuesday that the mandate that virtually all Americans have health insurance within three years is a valid exercise of Congress’s power. A decision not to buy insurance is just as much economic in nature as a decision to buy a policy, U.S. District Judge Gladys Kessler decided in a 64-page opinion — the third by a federal judge in favor of the mandate. The case is Mead, et al., v. Holder (District Court docket 10-950.)
Two other federal judges have ruled against the mandate, finding it beyond Congress’s authority on the theory that a decision not to have health insurance is not an activity at all, economic or otherwise, and Congress cannot seek to regulate “inactivity.”
Judge Kessler acknowledged, as other judges have, that “a decision by the United States Supreme Court will be required to resolve the constitutional and statutory issues which have been raised” in nearly two dozen court challenges to the law signed by President Obama last March.
The key to Kessler’s ruling in favor of the insurance mandate was her conclusion that the decision whether or not to obtain health insurance is a decision about “consumption of a commodity: a health insurance policy.” Whether the decision a consumer makes is positive — to buy such a policy — or negative — to decline to do so — each is “clearly economic” in nature, and Congress can regulate both under the Constitution’s Commerce Clause, the judge concluded. “It is pure semantics,” the judge wrote, “to argue that an indvidual who makes a choice to forgo health insurance is not ‘acting.'”…To pretend otherwise is to ignore reality.”
What is beyond Congress’s Commerce Clause power, according to Kessler, is the regulation of activity that is “non-economic.”
The decisions by millions of Americans for or against obtaining health insurance, the judge went on, will — taken all together — “substantially affect the national health insurance market.” Congress’s findings on the nationwide impact of multitudes of decisions about paying for health care “could not be clearer,” Kessler ruled.
People who opt not to buy health insurance and thus remain uninsured, the opinion said, will shift the uncompensated costs of the health services they will ultimately need onto other participants in the health care market. Such costs, it added, amounted to $43 billion in 2008.  This shifting will lead to higher insurance premiums for those who have policies, Kessler said, and will result in the uninsured getting “a free ride” in hospital emergency rooms when they do become ill, “as they surely will.” Federal law requires hospitals not to turn away those who arrive in need of medical care, the judge noted.
The judge thus granted the Obama Administration’s plea to dismiss the challenge, filed by four individuals who said in their lawsuit that they could afford health insurance, but would not ever obtain it. They thus contended — and Judge Kessler agreed with them — that they would be subject to a financial penalty under the new law for failure to obtain health coverage by 2014.
In another part of her ruling, Kessler concluded that the insurance-purchase mandate was critical to the desire of Congress to change the nation’s national health insurance system, so Congress’s adoption of the mandate was also valid under the Constitution’s Necessary and Proper Clause — here, necessary to carry out the insurance reforms under the Commerce Clause.
The judge did turn aside one argument the Administration had made in favor of the new law: a claim that Congress had used its General Welfare Clause power to enact the penalty that will be assessed for failure to obtain health insurance. The Clause, the judge found, only allows Congress to adopt taxes to support the “general welfare,” and the penalty provision in the health care law is not a tax, but rather a penalty.
Finally, the judge turned aside a claim by two of the challenging individuals that the insurance mandate will interfere with their religious belief that they actually will not need medical care in the future because God will take care of them.  The new law does not actually interfere with that belief, according to the decision.
