"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," Kessler writes. "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."
That's three to two in the Obama administration's favor now.
The Justice Department welcomed the ruling, which was the "third time a court has reviewed the Affordable Care Act on the merits and upheld it as constitutional," a spokeswoman said in a statement.
"This court found -- as two others have previously -- that the minimum coverage provision of the statute was a reasonable measure for Congress to take in reforming our health care system," DOJ's Tracy Schmaler said. "At the same time, trial courts in additional cases have dismissed numerous challenges to this law on jurisdictional and other grounds. The Department will continue to vigorously defend this law in ongoing litigation."
Once again, this will come down to SCOTUS. But the ruling is pretty clear on the Commerce Clause:
For all these reasons, the Court finds Plaintiffs’ arguments
against dismissal of their constitutional claim unpersuasive. The
crux of Plaintiffs’ arguments is that § 1501 is an unprecedented
attempt by Congress to regulate individual behavior, and therefore
threatens individuals’ freedom of choice. Appealing as this
emotionally charged argument may sound, the ACA is not as
unprecedented as Plaintiffs claim: as already discussed, Congress’s
broad power to regulate individual behavior under the Commerce
Clause is well established.
However, Judge Kessler did not buy the argument that the penalty imposed by the PPACA mandate was a "tax", actually citing Judge Vinson in Florida on the matter. I happen to think that both Kessler and Vinson are right there, the penalty was never intended to be a tax but a fine.
The third point is the argument in this particular case that the PPACA mandate violates the Religious Freedom Restoration Act, and that forcing people to buy insurance places a burden on those who may object on religious grounds. Judge Kessler had this to say:
Accepting these allegations as true, the conflict alleged
between § 1501’s requirements and Plaintiffs’ Christian faith does
not rise to the level of a substantial burden. First, Plaintiffs
have failed to allege any facts demonstrating that this conflict is
more than a de minimus burden on their Christian faith. Second, it
is unclear how § 1501 puts substantial pressure on Plaintiffs to
modify their behavior and to violate their beliefs, as it permits
them to pay a shared responsibility payment in lieu of actually
obtaining health insurance. See 42 U.S.C. § 5000A(b). In fact,
Plaintiffs specifically allege in the Amended Complaint that they
view this shared responsibility payment as “the lesser of two
evils” and therefore intend to pay it rather than purchase health
insurance. Am. Compl. ¶¶ 19, 33, 46. Finally, as Defendants point
out, Plaintiffs routinely contribute to other forms of insurance,
such as Medicare, Social Security, and unemployment taxes, which
present the same conflict with their belief that God will provide
for their medical and financial needs.
In other words this argument has been tried before and has failed, if you buy this third argument, you could use it to object to any government activity under the General Welfare clause: Defense spending, public safety, infrastructure spending, Social Security, Medicare, Medicaid, basically that you can conscientiously object to all forms of taxes and programs that directly help people. Kessler booted that right out the window and rightfully so.
Still, that's yet another Federal judge who has directly ruled that the PPACA mandate is legally sound making three, and dozens more suits tossed as frivolous. In the end, SCOTUS will have the final say...right around the 2012 elections.
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