No 'Free Rides' on Health Insurance, Says Blunt Federal Judge

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It's on.

U.S. District Judge Gladys Kessler didn't just endorse the constitutional legitimacy of the Patient Protection and Affordable Care Act on Tuesday evening. She used her 64-page ruling to answer some of the most basic criticisms of the new federal health care law. And she was as blunt in its defense as two of her colleagues on the federal trial bench, in Florida and Virginia, have been in striking down the contentious measure.

For those of you scoring at home, the score now is 3-2. Judge Kessler joins two other Clinton appointees in upholding the Affordable Care Act -- and in particular the "individual mandate" which requires individuals to purchase health insurance by 2014 -- as a reasonable expression of Congressional power under the Constitution. Two other federal judges, both Republican appointees, have both ruled the law an unconstitutional attempt by Congress to regulate a private, individual choice not to participate in an economic activity. Best-of-Five clearly won't end this contest. And I'm not sure a Best-of-Seven will, either. Best-of-Nine, anyone?

The contours of Judge Kessler's reasoning by now are familiar. Choosing not to buy health insurance is an "active" choice, she ruled, which can be federally regulated under Congress' broad power. Indeed, at the pace these health-care rulings keep coming, I suspect that by the time the Supreme Court finally decides the matter schoolchildren will be able to recite the Commerce Clause and the Necessary and Proper Clause and the Supreme Court's Lopez and Wickard decisions by heart. But what struck me about Judge Kessler's ruling were two passages -- one a footnote -- in which she took direct aim at one of the core political and semantic arguments made against the new law.

In a footnote, Judge Kessler wrote: "To put it less analytically, and less charitably, those who choose -- and Plaintiffs have made such a deliberate choice -- not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives."

By playing the "free ride" card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation's colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it's in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.

Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: "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."

Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power.' and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended" (citations omitted).

These judges obviously read one another's rulings. The language of Judge Kessler's ruling tells me that she thought what Judge Vinson wrote last month was hooey. We'll see who's right in the end.

Thumbnail image credit: Getty Images

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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