Obamacare Ruling: Commerce Clause Covers Mental Activity

Did you know that a federal judge has handed down a ruling on health reform saying the new legislation is not only constitutional, but also effectively says that your thought processes, which lead to your choices, can now be regulated by the federal government?

Yes you read that right.

A recap: The individual mandate, the linchpin of health reform, forces those who don't have insurance to buy health coverage, and if they don't, they have to pay a federal tax and/or face possibly jail time, taxes which go toward helping to pay for the bill. Have you heard yet about a lock box for this mandate tax, or any other lock box for the other reform taxes? Me neither.

Opponents of health reform say the Framers of the U.S. Constitution never intended to let Congress regulate economic activities that were not commercial, much less interstate, because the mandate is effectively a tax on not doing anything, meaning, not buying insurance. I told you about this looming fight over a year ago, in January of 2010, "Is Health Reform Unconstitutional?"

If the insurance mandate vaporizes into thin air upon a successful Constitutional challenge, that is the end of this chapter of health insurance reform. Already, 26 states are fighting it. Five federal courts have weighed in, three in support of the mandate, two against.

The three judges were appointed by Democratic presidents, the two, by Republicans, and this case is likely headed to the nine chief justices of the U.S. Supreme Court, five of which are Republican nominees, as is the likely swing vote, Chief Justice Anthony Kennedy, who exhibits a strong independent streak toward a common ground.

In ruling in favor of the constitutionality of the individual mandate, U.S. district court judge Gladys Kessler of Washington, D.C. displayed the science fiction abilities of D.C. regulators when she wrote:

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. See Thomas More Law Ctr., 720 F.Supp.2d at 893 (describing the “activity/inactivity distinction” as an issue of first impression). 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 judge is saying this: “Anytime you make a choice not to act you are 'acting.'"

Cornell University legal expert William Jacobson has blogged about this. He says: “Therefore, the court has now decided, any decision to not to act (related to commerce) is an act and you can be therefore required to do what the government says you must do.”

Are you thinking about blogging about this subject now too? DANGER! YOU COULD BE REGULATED AND TAXED STOP!

Ok, forgive me. Anyway, so, if you decide not to buy a car, Jacobson says, you’re acting, and if the government wanted to require you to buy a car, under this D.C. ruling, it could.

In her ruling, Judge Kessler unspools this argument, albeit in an attenuated skein, arguing that the health care market is a special needs case due to an intrinsic problem in its administration, where government regulation simply cannot be abjured:

"This second aspect of the health care market distinguishes the ACA [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...

"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."

In other words, by law, because hospitals are not allowed to turn away people who need emergency care even if they are not able to pay for it, the individual mandate is justified.

Set aside for now the fact that this law undermines the false argument that the uninsured are not taken care of in this country.

Judge Kessler is arguing health reform is constitutional because the government by law must step in to enforce legislation that requires hospitals to provide care, no matter if they go unpaid. The law here stems from the "Emergency Medical Treatment and Active Labor Act" (EMTALA), which Congress enacted and President Ronald Reagan signed in 1986. The act requires hospitals to administer care even if that care is uncompensated.

Yes, this argument sounds unquestionably rock solid in its rendering. But it's a dodge, and it's a means to an end argument. Also, the judge's ruling is the equivalent of applying a band aid to a gaping hole that requires a tourniquet, a hole Congress itself blew open with this law.

I'm not saying here that hospitals should not help the needy. To the contrary. I'm saying that Congress has not done enough to help our hospitals when it enacts such laws, and then after the fact the judiciary puts even more strain on them with rulings such as these.

More importantly, the judge has not adequately addressed where the line is constitutionally drawn between the government taking over what are individual responsibilities. Including our thought processes.

As I've reported to you, never before in the history of the United States has the federal government forced any taxpayer to buy any goods or services, said legal experts Randy Barnett at Georgetown University Law Center, Nathaniel Stewart, a lawyer at White & Case, and Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative DC think tank.

Even during World War II, taxpayers were not forced to buy US bonds to support the war effort, they note.

No farmer was forced to grow food for the troops, no worker was conscripted to build tanks.

And as of yet, taxpayers are not forced to buy Cadillac Escalades or any other car to support the bailed out auto companies. If they think they might, then they could be taxed. Kidding. Maybe not. I need a Dramamine.

This is essentially Congressional coercion of taxpayers, forcing them to buy “artificially high priced policies to subsidize coverage for others, as well as an industry saddled with other government costs and regulations,” the legal experts have noted.