Editore"s Note
Tilting at Windmills

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February 23, 2011

ANOTHER FEDERAL COURT VICTORY FOR THE AFFORDABLE CARE ACT.... Over the last year, there have been all kinds of court rulings related to the health care reform law, but most deal with procedural issues. They all matter, but the ones that deserve the most attention are the ones that deal with the substance of the Affordable Care Act and the legal merit of the challenges.

Going into yesterday, four federal district courts had ruled on the legality of the law, with each side winning twice. Yesterday, Judge Gladys Kessler tipped the scales and made the right call.

Judge Kessler adopted the government's position on whether Congress's authority to regulate interstate commerce is so broad that it can require people to buy a commercial product. Past Supreme Court decisions have established the standard that Congress can control "activities that substantially affect interstate commerce."

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."

The judge also tossed out a claim that the law restricted the plaintiffs' exercise of religious freedom because the mandate to buy health insurance conflicted with their belief that God would provide for their well-being. She wrote that such a burden, if it existed at all, was too minor to require invalidation of the law.

Perhaps most notably, Kessler's ruling added that those who buy the argument embraced by the two judges who ruled against the law are choosing to "ignore reality." As Jonathan Cohn explained, she also has no use for the so-called "broccoli argument."

The ruling is the result of a case brought by the American Center for Law and Justice, a right-wing legal group created by radical TV preacher Pat Robertson. It also keeps the partisan nature of the legal dispute alive -- three judges appointed by Democratic presidents have sided in support of the law, two judges appointed by Republican presidents did the opposite.

As a practical matter, all of these rulings are of limited value, since the issue will ultimately be decided by the U.S. Supreme Court, but given all the breathless media attention the conservative court rulings received, it's worth noting that there are now three federal court rulings that make it obviously clear that the health care reform law is clearly constitutional.

Steve Benen 9:30 AM Permalink | Trackbacks | Comments (18)

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Pelosi had a funny tweet on this. Something like "awaiting the breaking news headlines."

Posted by: BrendanInBoston on February 23, 2011 at 9:39 AM | PERMALINK

Of course, the Villagers will discount this. The only cases that matter are the ones where Obama (and every American) loses.

Posted by: K in VA on February 23, 2011 at 9:39 AM | PERMALINK

Dude, Walker got punked big time.

http://www.buffalobeast.com/?p=5045

Read that. He's toast.

Posted by: mikefromArlington on February 23, 2011 at 9:44 AM | PERMALINK

They're all Cricketers!

Posted by: Todd for VT House on February 23, 2011 at 9:52 AM | PERMALINK

The compliant MSM won't tell us about another ruling on ACA until the conservative pull even, or ahead. Then, it'll be 24X7 for awhile.

Oh, wait, FOX I'm sure will take a few wacks at that judge.

And Michelle Malkin will send out her crack 'Kitchen Countertop Spies" to find something bad or hypocritical about the judge.
Like maybe, she once drove a day without car insurance when she mailed the check in late.

Posted by: c u n d gulag on February 23, 2011 at 10:01 AM | PERMALINK

Funny, I could not find a single article on cnn.com addressing this case, however they had a number of articles about Vinson's ruling. To msnbc.com's credit, they have an article about Kessler's ruling.

Posted by: Jason on February 23, 2011 at 10:10 AM | PERMALINK

All the current judicial rulings, pro and con, are completely irrelevant, given that the RATS on the US Supreme Court are all but a lock to find not only the ACA, but any concept of general welfare to be not only unconstitutional, but actually a felony.

-Z

Posted by: Zorro on February 23, 2011 at 10:10 AM | PERMALINK

from the link about the kessler ruling:

"A version of this article appeared in print on February 23, 2011, on page A14 of the New York edition."

both of the anti-ACA decisions appeared on the first page.

Posted by: upyernoz on February 23, 2011 at 10:13 AM | PERMALINK

I have antipathy towards the "broccoli argument" but for a reason in addition to Judge Kessler's, and that would be that we live in a democracy and if congressional representatives made law so unreasonable as buy broccoli requirement they would be voted out of office. Even those who do something as reasonable as make us buy healthcare (or pay a fine)may be (and have been) stupidly voted out of office.
The constitution gives the minority certain rights, but after that, and within the powers of the commerce clause, the majority should rule.

Posted by: patrick II on February 23, 2011 at 10:32 AM | PERMALINK

Gut the unaffordale subsidies to private insurance act.

Posted by: Kill Bill on February 23, 2011 at 10:43 AM | PERMALINK

"It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting' "

By judicial standards, that's a pretty sharp elbow right to the nose of Vinson and co.
It roughly translates to "only a fool could believe . . . ."

Posted by: retr2327 on February 23, 2011 at 10:43 AM | PERMALINK
"...but any concept of general welfare to be not only unconstitutional, but actually a felony"

In a way I hope they do [I dont think that will actually happen tho] so all bailouts, subsidies, earmarks, lobbyists, loans and grants so big corporations from the MIC to Exxon to Banks are stripped of their pig out at the trough permit.

Posted by: Kill Bill on February 23, 2011 at 10:49 AM | PERMALINK

All I get is a database connection error from this link http://www.buffalobeast.com/?p=5045

Posted by: Kill Bill on February 23, 2011 at 10:50 AM | PERMALINK

Mike from Arlington - thanks for the link. That was both hilarious and horrifying.

Kill Bill - simply go to buffalobeast.com - the conversation between "David Koch" and Gov Walker is on the front page.

Posted by: tsquared on February 23, 2011 at 11:10 AM | PERMALINK

Kill Bill, @10:50

re:
http://www.buffalobeast.com/?p=5045
Perhaps they were temporarily overwhelmed at the time you tried? I got there without any problem. Try again.

It's a sting worth the talents of O'Keefe :) Which is the reason I'm not ready to take it at face value. The author admits he impersonated David Koch but says that the guy at the other end of the phone line, saying all those preposterous things, is Scott Walker. And how do I know that? Because the guy says so?

Posted by: exlibra on February 23, 2011 at 11:11 AM | PERMALINK

To quote Rand Paul's favorite band "if you choose not to choose you still have made a choice"

Posted by: ligel on February 23, 2011 at 12:15 PM | PERMALINK

Thx, I finally got through.

Interesting Walker talks about 'getting freedoms back' but only for the 'one of us' crowd.

Posted by: Kill Bill on February 23, 2011 at 1:08 PM | PERMALINK

The judges who ruled against the health care law did so to set up an appeal to the Supreme Court where they hope Roberts, Scalia, Thomas, Alito and Kennedy will strike it down. Not an unreasonable strategy, even if the grossest kind of judicial activism.

Posted by: Robert Abbott on February 23, 2011 at 1:37 PM | PERMALINK




 

 

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