The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because choosing not to purchase health insurance is an “economic activity”:
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
This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”
Judge Kessler also relies on what I have previously called the “health care is special” argument: that choosing not to purchase health insurance is an economic activity because we will all use health care at some point in our lives. This argument, however, also leads to unlimited congressional power, for reasons I have explained here:
This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that [Judges] Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.
Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation….” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.
How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else…..
Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision. This is true regardless of whether the producers must provide services to some consumers for free or not. At most, the latter condition exacerbates the negative impact on producers of a failure to purchase. But so too can all sorts of other market conditions and government regulations. Moreover, Judge Kessler’s approach would allow Congress to impose any mandate of any kind so long as it also required at least some producers to provide their product to at least some consumers for free. This too is a road to virtually unlimited federal power to impose mandates, since producers in any industry would be happy to accept a minor “free service” obligation so long as it was coupled with a more lucrative purchase mandate.
In a footnote, Judge Kessler blames the plaintiffs for supposedly choosing to “’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.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals free emergency service to the uninsured. If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.
Finally, Kessler also upholds the mandate under the Necessary and Proper Clause. In so doing, however, she simply ignores the main arguments against the federal government’s position under that Clause: that the mandate is not “proper” even if “necessary” and that it runs afoul of the five factor test recently applied by the Supreme Court in United States v. Comstock. In fairness, the judge did not need to consider the Necessary and Proper Clause issue, since she had also decided to uphold the mandate under the Commerce Clause alone. But since she chose to reach the issue, she should have made at least some effort to explain why the key anti-mandate arguments (which had previously been accepted by two other federal district courts) are wrong.
UPDATE: I should note that Judge Kessler rejects the federal government’s argument that the mandate can be upheld under Congress’ power to impose taxes. Like every other court that has considered this argument so far, she concludes that the mandate is a “penalty,” not a tax. In reaching that conclusion, she relies on Judge Roger Vinson’s analysis in the Florida decision striking down the mandate. The federal government’s tax argument has now gone 0-4 in federal courts, including two adverse rulings by federal judges who upheld the mandate on other grounds.