Tuesday, February 22, 2011

The United States now leads, 3-2

As most of you have probably by now heard, Judge Gladys Kessler of the District Court for the District of Columbia today granted the United States's motion to dismiss in Mead v. Holder, concluding that the minimum essential coverage provision is within Congress's power to regulate commerce among the several states. You can access the opinion here.

I have only had a chance to skim the opinion thus far, so I have nothing intelligent to say (not to imply that I ever do regardless). But this appears to be a crucial passage (from p.49):

"In choosing not to purchase health insurance, Plaintiffs are actively arranging their circumstances (whether to save for their children’s education or buy a new car) so that they must, in the future, rely on either their own resources or on federal law requiring medical providers to care for the sick and injured. There is no question, as Congress noted, that such mandatory care often goes uncompensated, although ultimately paid for by other market participants and the taxpayer. See ACA §1501(a)(2)(F), as amended by § 10106. For these reasons, the Court concludes that a decision not to purchase health insurance is an 'activity.'"

Once one concludes that the conduct being regulated by 1501(b) constitutes activity, it is almost inescapable that this activity is economic in nature. And this, in turn, means that the activity, in aggregate, substantially affects interstate commerce, and thus falls within Congress's commerce power (under the logic of Lopez and Morrison).

It is also interesting to note that Judge Kessler, after upholding 1501(b) under the Commerce Clause, nonetheless went on to hold that 1501(b) was not a tax, and thus could not be justified under the General Welfare Clause. The United States has yet to convince a single court on this claim.

I will try to have some more analysis up at some point tomorrow.