On Feb. 22 District of Columbia District Court Judge Gladys Kessler dismissed a case challenging the constitutionality of the Affordable Care Act (ACA), also known as Obamacare, in the case of Mead v. Holder. On Jan. 31, Northern District of Florida Judge Roger Vinson issued his opinion in Florida v. HHS that the entire scheme of Obamacare was unconstitutional.
Differences in the Cases and the Results
The matter before Judge Kessler involved strictly private citizen plaintiffs claiming the “individual mandate” was beyond the power of Congress. The case before Judge Vinson involved 26 states of the Union, several private plaintiffs and the National Federation of Independent Business. In each case, the decision of the judge is binding upon the parties involved, unless and until the decision is appealed and overturned. Judge Vinson’s decision, because of the parties (more than half the states of the Union) has the more far reaching effect.
The Commerce Clause Analysis of Judge Kessler
The extent and limits of congressional powers under the Commerce Clause are central to Judge Kessler’s analysis as it was claimed before her that the law was beyond the power granted to Congress by the clause. As the history of the clause is inescapable, Judge Kessler’s review of Commerce Clause history mirrors that of Judge Vinson. Judge Kessler admits that all previous Commerce Clause cases have involved “activity”:
“As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power.”
The question that then becomes central to Judge Kessler’s analysis is whether the Commerce Clause gives Congress the power to regulate the “decision making” or “mental activity” of individual citizens. Judge Kessler concludes that such “decision making” or “mental activity” is economic activity within Congress’s power to regulate.
Judge Kessler relies heavily upon Congress’s various findings, though noting the Supreme Court has directed judges not to pile “inference upon inference” in determining the effect of an action on interstate commerce. The balance of her reasoning determines that an individual deciding not to do something is in reality an activity that may be regulated. This is the greatest divergence between her and Judge Vinson when it comes to analyzing the “individual mandate.”
Is Deciding to Not Buy Health Insurance an Activity that Congress May Regulate?
Both Judge Vinson and Judge Kessler acknowledge that all congressional exercises of Commerce Clause power decided by the Supreme Court have regulated “activity.” Judge Kessler has concluded that the mental activity of deciding not to buy health insurance is in fact an “activity” for regulation purposes of the Commerce Clause. Judge Vinson took a significantly different view:
“At issue here, as in the other cases decided so far, is the assertion that the Commerce Clause can only reach individuals and entities engaged in an "activity"; and because the plaintiffs maintain that an individual’s failure to purchase health insurance is, almost by definition, “inactivity,” the individual mandate goes beyond the Commerce Clause and is unconstitutional. … based solely on a plain reading of the Act itself (and a common sense interpretation of the word “activity” and its absence), I must agree with the plaintiffs’ contention that the individual mandate regulates inactivity.”
The judges apparently agree that the Commerce Clause has previously been used to regulate “activity” and that such “activity” must substantially affect interstate commerce to constitutionally allow Congress to regulate it. In essence, the authority of Congress to impose the “individual mandate” revolves around deciding if the mental process (as described by Judge Kessler) of deciding not to buy health insurance is an “activity.” Judge Vinson's decision, while declaring the law unconstitutional, was apparently not understood by the U.S. Department of Justice, which asked him for a further ruling through a "Motion to Clarify".
The Need for Supreme Court Review
In the Florida case, the Department of Justice has asked Judge Vinson to clarify what was meant by “unconstitutional.” In another case in Virginia the state has asked the government to cooperate in expediting the matter to a Supreme Court decision and the federal government has refused. It is quite clear, with conflicting decisions by the district courts, that ultimately the definition of “activity” vs. “inactivity” must come from the United States Supreme Court.
At the moment there are five district court opinions with different outcomes and differing reasoning. It is important to note, that unless the judge involved has issued a “stay” of his/her order, for the states and people involved in those suits, those judicial decisions are the law for those parties. The Department of Justice has yet to indicate in any court filing why it is not proper to expedite a Supreme Court decision to resolve the matter as quickly as possible for the parties to the suits around the country and for the citizens of the United States.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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