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Posted at 10:16 AM ET, 02/23/2011

Another judge rules the individual mandate constitutional

By Ezra Klein

This time it was Judge Gladys Kessler in the D.C. Circuit Court. Kessler, interestingly, rejected the idea that the individual mandate is a tax. Her ruling for the mandate's constitutionality rested on the "necessary and proper clause," and she had no patience for the claimants protestations that this was somehow regulating "inactivity":

This Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. 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 ignore reality.

You can read the full ruling here. The individual mandate is now 3-2 in the courts, and it's a perfect partisan streak: Three judges appointed by Democrats have ruled for it, and two judges appointed by Republicans have ruled against it. But the rulings for the bill haven't received anywhere near the attention given to the rulings against the bill. Judge Kessler's ruling, for instance, doesn't appear to be on the homepage of any of the major papers right now.

I'm not alleging bias here: A judge upholding the status quo is not as newsworthy as a judge radically altering it. But the reality is that the public is seeing a lot of coverage of the rulings against the Affordable Care Act and almost no coverage of the rulings -- which are substantially more numerous, particularly if you include the many cases that have been thrown out of court -- in the law's favor. That's quite a gift to the opponents of the legislation. A typical consumer of news probably does not realize that the balance of the courts, at this point, have ruled the law constitutional.

By Ezra Klein  | February 23, 2011; 10:16 AM ET
Categories:  Health Reform  
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Next: Jamie Galbraith: 'The government is not, by any means, a pure representative of the working population.'

Comments

Hurray!!!


good news!
there is cause for optimism today!
judge kessler's ruling... and as is said here,
"the balance of the courts, at this point, have ruled the law constitutional."

the courage of the state senators in wisconsin.
the incredible outpouring of grass-roots support and attention,
for labor...and for the senators.
and a refocusing on the accomplishments and necessity for unions, and the right to collectively bargain.
today is a good day:-)

Posted by: jkaren | February 23, 2011 10:41 AM | Report abuse

"A typical consumer of news probably does not realize that the balance of the courts, at this point, have ruled the law constitutional."

Maybe if more news sources, while reporting on the courts that buck the trend, would add the line, "The balance of the courts, at this point, have ruled the law constitutional," then the typical consumer of news would realize this.

Posted by: dkp01 | February 23, 2011 10:53 AM | Report abuse

Kessler actually sits on the DC district court, not the DC Circuit.

Posted by: clmcc | February 23, 2011 10:57 AM | Report abuse

You might not allege bias, but I will.
When the constitutionality of the most controversial political legislation of the past 40 years is ping-ponging through the courts, it is flat-out irresponsible to only report court decisions that take one side of the controversy.
Using the Ezra-endorsed standard, if the Supreme Court upholds PPACA's constitutionality, will that be news?

Posted by: RZ100 | February 23, 2011 11:19 AM | Report abuse

The judge is brain dead. Under her bizarre interpretation, the Constitution would allow U.S. congress to mandate that Americans purchase a GM auto.

This of course, is insanity. Clearly Gladys is insane.

Posted by: illogicbuster | February 23, 2011 11:23 AM | Report abuse

"This Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. 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 ignore reality."

In other words, the government can more or less do whatever it likes.

Posted by: justin84 | February 23, 2011 11:31 AM | Report abuse

@justin84:

the (federal) government can 'do whatever it likes' as long as it is "necessary and proper" for the execution/implementation of constitutionally enumerated powers.

and that's the strict conservative view (e.g., Scalia).

Posted by: eggnogfool | February 23, 2011 12:21 PM | Report abuse

As far as liberal judges like Kessler are concerned the government has the power to do anything it wants with no restrictions, to heck with the constitution. Citizens of this country who actually believe that the government has limited powers specifically enumerated in the constitution should be scared to death over this ruling. Liberal and conservative. Suppose a Republican administration and congress passes a law mandating that for the common good every adult in this country must purchase a gun? Or how about if they decided that everyone for the country's moral good has to buy a bible?

Posted by: RobT1 | February 23, 2011 12:22 PM | Report abuse

"the (federal) government can 'do whatever it likes' as long as it is "necessary and proper" for the execution/implementation of constitutionally enumerated powers."

But government provision of health care services is not an enumerated power.

You can say that the Constitution provides such authority via the commerce clause, but in interpreting it that way, you effectively remove all limits on government.

She could use the same reasoning to force an Amish person to buy a GM Volt.

"Hey, you might not use cars or ever plan on using them per your lifestyle, but hey it might be good for you to have one. Who knows, maybe in five years you might want to use it to drive to the hospital and use your Obamacare! Remember, your decision not to buy a Volt impacts interstate commerce, and given that we can legally force you to buy one. Our auto industry is broken, and bailouts cost the government money. Also, not everyone can afford to regularly buy a new car, and having a reliable car is essential to the way most Americans live. We can ensure universal car ownership all while keeping Detroit healthy and bailout free. But don't worry, you don't really have to buy the Volt, we'll just make you pay a $2,000 penalty if you decide you don't want it."

Posted by: justin84 | February 23, 2011 1:43 PM | Report abuse

The problem becomes, what is not interstate commerce. Also, I thought a person's body was sacrosanct. And, could the federal government tax you $50,000 to have an abortion? Your constitutional interpretation indicates: YES.

Posted by: Commenting1 | February 23, 2011 1:57 PM | Report abuse

"I'm not alleging bias here: A judge upholding the status quo is not as newsworthy as a judge radically altering it."

No, at this point the whole constitutionality of it has already been made a big issue, so as such a big issue, a new ruling on it -- and different from what the public last heard -- should be a big issue. This is big news because it contradicts the last ruling that they considered big news.

But the press is just so bad now. It's about what's sensational, what's got action, what sells. The positive externalities in journalism are just overwhelming today, monumental, and should be massively subsidized with tax credits to make them profitable.

Posted by: RichardHSerlin | February 23, 2011 3:16 PM | Report abuse

The lack of coverage isn't surprising, Ezra, because this isn't a numbers game. It is extremely rare for any district judge to declare a law unconstitutional, let alone 2, no matter how opposed to the law they may be. Even if it's out of 17 judges. The 12 who ducked behind technicalities reacted the way most judges did.

In truth, Hudson, Vinson and Kessler all know, and all admitted as much in their rulings, that this will ultimately go to SCOTUS no matter how many lower court or even appellate court rulings go one way or the other. President Obama should support fast tracking the lawsuits to SCOTUS, since it's up to them to interpret that "over hundred year old document" written in "funny language."

Posted by: KPOM1 | February 23, 2011 3:23 PM | Report abuse

Also, Ezra, this is to some extent old news. The battle lines have moved on to Wisconsin and the union fights. Everyone knows that SCOTUS will decide the constitutionality of ACA/Obamacare. The 4 who support the bill will draw from Kessler's opinion. The 4 who oppose will draw from Hudson or Vinson (with potentially important implications). Who Kennedy draws from is anyone's guess.

Anyway, the justice department has asked Vinson to clarify his ruling. It will be interesting what happens with that.

Posted by: KPOM1 | February 23, 2011 3:27 PM | Report abuse

And there is clearly a libertarian bias in the press, as well as a bias toward Republicans out of fear of looking too liberal. When you have one side that's constantly telling whoppers, ridiculously misleading, and contradicting science, if you do your job and report important truths in a non-misleading way, then you'll constantly be exposing that side, pointing out their misleading and lies and unscientificness, and so you will look "unbalanced", even though you're just reporting important truths in a non-misleading way. Sadly, and to our profound harm, it's more important to the press to look "balanced" than to report important truths in a non-misleading way, thus they choose to have a strong Republican bias, to give them a giant handicap to even things up.

But there's more to it than this. It's not profitable to hire many really technically expert people to check assertions quickly and competently, so the cheap easy thing is to do a "he said, she said". Without appropriate subsidies for the monumental positive externalities, like big tax credits, it's just not profitable to well staff a newspaper with experts to vet statements for truth and explain why they're false.

Posted by: RichardHSerlin | February 23, 2011 3:33 PM | Report abuse

But wait! I thought the liberal main stream media was overwhelmingly biased against rightwing conservatives?? Why would they only report the minority radical legal theories and ignore the mainstream legal consensus??? They sure are sneaky, those biased liberals!

Posted by: thebobbob | February 23, 2011 4:17 PM | Report abuse

--*[T]he reality is that the public is seeing a lot of coverage of the rulings against the Affordable Care Act and almost no coverage of the rulings -- which are substantially more numerous, particularly if you include the many cases that have been thrown out of court*--

How wonderfully shallow you are, Klein, but the outcome isn't a popularity contest (and whichever way it's decided, DeathCare will always be wrong.)

In any event, it seems Judge Kessler has the mental acuity of a bird.

Posted by: msoja | February 23, 2011 8:46 PM | Report abuse

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