Newest ruling on Health Care Reform makes it 3-2 in favor in the courts

by Russell's Rants

Originally published February 23, 2011

Yesterday, a federal district judge for the District of Columbia, Gladys Kessler, issued a ruling upholding the constitutionality of President Obama’s Health Care Reform “Affordable Care” Act. She was the fifth such federal judge to rule on the issue – all of which rulings have broken upon partisan lines. Three Democratic-appointed judges in favor, and two Republican-appointed judges opposed. All bets are that the Supreme Court will make the final ruling.

All of the five rulings to date have focused on the individual mandate contained in the Affordable Care Act, the mechanism by which individuals are required to obtain minimum essential health insurance coverage.

Judge Kessler’s contribution to the debate is in directly addressing the naysayers’ contention that Congress lacks authority under the Commerce Clause to regulate what they characterize as purely passive activity (i.e., the decision to remain uninsured) and to force individuals to purchase minimum coverage. She finds the “activity/inactivity distinction” to be of little legal 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.

She points out, in agreement with the two prior cases upholding the law, that everyone is “either [a] present or future participant[] in the national health care market” given the most individuals will require some medical care in their lifetimes. And if an individual is sick or injured, medical providers may not refuse basic medial services under federal law regardless of the individual’s ability to pay (resulting in a cost-shift of $43 billion in 2008 to such providers and an increase on average of over $1,000 in added premiums per family).

It is that second point – the absolute obligation of medical providers under the Emergency Medical Treatment and Active Labor Act of 1986 to service the uninsured – which provides the basis for Judge Kessler to rebut what has been dubbed the “Broccoli Mandate.” Conservatives, including Judge Vinson from Pensacola, have argued that if the individual mandate were to be held constitutional, the federal government would know no bounds: hypothetically, it could force citizens to buy GM cars in furtherance of a federal bailout of the car industry or to eat broccoli as part of a national anti-obesity nutrition program. In response, Judge Kessler holds:

This second aspect of the health care market distinguishes the [Affordable Care Act] from Plaintiffs’ hypothetical scenario in which Congress enacts a law requiring individuals to purchase automobiles in an attempt to regulate the transportation market. Even assuming that all individuals require transportation in the same sense that all individuals require medical services, automobile manufacturers are not required by law to give cars to people who show up at their door in need of transportation but without the money to pay for it. Similarly, food and lodging are basic necessities, but the Court is not aware of any law requiring restaurants or hotels to provide either free of charge.

It should be emphasized that this distinction is not merely a useful limiting principle on Congress’s Commerce Clause power. Rather, it is a basic, relevant fact about the operation of the health care market which is critical to understanding the ACA’s efforts to reform the health care system. The requirement placed upon medical providers by federal law to care for the sick and injured without recompense is part of the cost-shifting problem that Congress sought to redress by enacting the ACA. When a supplier is obligated by law to produce goods or services for free, there is bound to be a substantial effect on market prices if consumers’ behavior results in that obligation’s frequent invocation.

Even Charles Fried, formerly Solicitor General in the Reagan Administration and presently a professor at Harvard Law School, testified before Congress that while it might not be good policy, there is no constitutional proscription against the government requiring individuals to buy broccoli – just a 5th and 14th Amendment restriction against forcing them to eat it! And 100 prominent law professors named a few examples where the federal government mandated otherwise passive individuals to take affirmative actions: from the Second Militia Act of 1792 under George Washington, which required all men eligible for militia service to outfit themselves with a military style firearm, ammunition and other equipment, even if such items had to be purchased in the marketplace – to other familiar actions still in practice today, including jury service, tax-return filing and selective service registration.

But Judge Kessler brings the point home in her ruling:

To put it less analytically, and less charitably, those who choose–and Plaintiffs have made such a deliberate choice—not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a “free ride” on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.

Nicely said, your honor!