Wednesday, December 15, 2010

More -- Of "The Tempest In A Teapot" -- Judge Hudson's Highly-Questionable Decision

A very useful dialogue (in my comments box) -- on the latest decision in the "health care reform wars" -- has led me to find this excellent opinion piece (do go read it all):

. . . .The Justice Department has won 14 cases challenging the Patient Protection and Affordable Care Act and has now finally lost one. Judge Hudson held that the statute’s requirement that uninsured individuals who can afford health insurance and who do not have a religious objection to insurance purchase basic health insurance coverage violated the Constitution. Judge Hudson held that this requirement exceeded the power of Congress under the Commerce Clause because it does not regulate economic “activity.”

The decision to not buy insurance is commerce, and Congress can regulate it. Judge Hudson has effectively rewritten the Commerce Clause, which nowhere contains the word “activity.” This is a version of an argument that has been rejected before. In two major Commerce Clause cases, Wickard v. Filburn and Gonzales v. Raich, the party challenging the statute claimed to be outside of the stream of commerce, but the Supreme Court held that the party nevertheless had an effect on interstate commerce.

The decision not to insure is not “inactivity,” as Judges Norman K. Moon and George Caram Steeh have already held in other federal court cases raising the same issue.

None of us can choose not to become sick or injured. If individuals choose not to buy insurance and then need health care, they will either buy insurance then (which they will be able to do once preexisting condition clauses are outlawed) or simply receive the care, pay for what they and, and pass the remaining costs on to the taxpayers and to responsible persons who insure. This happens each year to the tune of tens of billions of dollars. The decision to not buy insurance is commerce, and Congress can regulate it. . . .

Indeed -- and do go see the comment box discussions, below -- for more.

1 comment:

Anonymous said...

Bravo, Professor Kerr, for pointing out the judge's error. BTW, President Obama was a constitutional law professor at University of Chicago...which may explain why it is a tax rather than a penalty.