Full Disclosure: I am not a lawyer nor a trained legal scholar.

So another Clinton-appointed federal judge, Gladys Kessler of the D.C. District (part of the D.C. Circuit), ruled the Obamacare mandate is entirely Constitutional (via Gabe Malor). In a pig’s eye. While Kessler does grant standing to the plaintiffs (something other Democrat judges haven’t done in many of these Obamacare cases), her “analysis” regarding the Commerce Clause leaves much to be desired.

This is the third ruling on the merits of the mandate (as opposed to those cases dismissed due to lack of standing) in which a Democrat sides with the Party over the Constitution. In all cases, they’ve added a new definition to the word “commerce”, to mean the act of not buying something. As I’ve said before, this is tantamount to Congress relegating the American people as serfs.

On page 45, Kessler comes up with this gem:

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.

Let’s analyze this. I agree with Kessler that making a choice is an affirmative action. What Kessler is arguing is the choice not to buy is strictly an economic choice. That is ridiculous. Think about it. If I have a choice to buy one of two TVs, I will probably make an economic choice on which to buy; but, if I don’t buy a TV, it may be for a variety of other reasons that may have nothing to do with economics. Same for a telephone or lots of other things. Gabe Malor puts it very nicely:

Of course, if Judge Kessler is correct, then every “mental activity” that has an economic effect is subject to regulation by the federal government. This would indeed justify a mandate to buy broccoli or GM cars or whatever because your decision not to make such purchases is “economic activity” that affects the price of these goods in the interstate marketplace.


For example: no American will ever go their entire lives without consuming food. Therefore, a food mandate requiring the purchase of minimum quantities of food with pre-approved nutritional features would pass muster under Judge Kessler’s reasoning.

If you remember correctly, and I know you do, Justice Elena Kagan dodged this question during her confirmation hearings.

In order to make her “analysis” pass muster, she cites Thomas More Law Center and Liberty University, the two cases decided by other Democrat judges. She does cite the two cases decided responsibly (Virginia v. Sebelius and Florida v. HHS); but only to agree that the penalty is not a tax (all four ruled that way), and in regards to Florida v. HHS, to take what Judge Vinson said out of context. As with Thomas More Law Center and Liberty University, Kessler regurgitates the Democrats’ political talking points to redefine the word “commerce” to include the lack of a transaction. And after doing so, she gets snotty towards the plaintiffs in a notation (on page 40):

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.

Gabe quoted the same paragraph and from it highlighted the phrase “responsible choices”, following up with this [italicized emphasis from original, bold emphasis mine]:

No. No. No. People do not get credit for “responsible choices” when, in fact, they have no choice at all. The individual mandate takes the choice whether to purchase health insurance out of the hands of Americans. The judge’s snide aside — “on the backs of responsible Americans” — simply demonstrates her biased view of these plaintiffs and of the healthcare law. That’s not a legal argument. It’s a policy one.

And it’s the policy of those in the Democratic Party, just like “Judge” Kessler.

This and the other rulings that went the government’s way remind me of the blatantly unconstitutional Kelo v. New London ruling. Both Justices Stevens and Kennedy used a speculative development plan used by New London to redefine the “public use” provision of the Takings Clause (potentially increased tax revenue for New London was added to the definition of “public use” instead of how it had been used historically; e.g., to build a government building, a park, a road, etc.) to justify the “legality” of New London taking property from one private party and give it to another private party (Pfizer, Inc.; after 10 years, Pfizer backed out of the deal and New London is stuck with no new revenue and an empty, weed-filled lot). Kessler and the other judges who ruled similarly are making a political decision and then having it be masked as a legal ruling. It’s dishonest and unethical. Judges who rule this way need to be impeached and thrown off the courts.

I have no doubt the left will crow and act smugly about this obviously activist ruling. They will argue that more of their judges have ruled the Obamacare mandate is Constitutional compared to those judges who have actually used the Constitution to rule against it; it’s a stupid, pointless argument. Besides, the administration is still waiting for word from Judge Vinson of the Florida v. HHS ruling to find out whether states can stop budgeting for implementing their Obamacare-related requirements and which states this can effect, whether it’s all states or just the 26 (or is it now 28?) that are plaintiffs in the Florida v. HHS lawsuit.

Have no doubt about it. The ruling by Judge Kessler meets the definition of judicial activism. It doesn’t mean the Supreme Court wouldn’t uphold it, but it isn’t based either on the Constitution or the law.