Althouse: "Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act."

February 22, 2011

"Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act."

"Two other federal district judges, both appointed by Republican presidents, have struck down the law’s keystone provision, which requires most Americans to obtain health insurance starting in 2014."

It's starting to look like a pattern.

59 comments:

Anonymous said...: They don't even bother with an election in Chicago.

It's just a backroom fix by the Democratic Party.; 2/22/11, 10:34 PM
I'm a Shaaaaark said...: Cool. I wonder what else congress will force me to buy? I hope it's guns and other fun stuff, and not just yucky stuff like insurance.; 2/22/11, 10:35 PM
madAsHell said...: Long may she rule!!; 2/22/11, 10:35 PM
Revenant said...: Not buying insurance is "an active choice"?

I wonder what an "inactive choice" would be.; 2/22/11, 10:40 PM
Chase said...: This comment has been removed by the author.; 2/22/11, 10:42 PM
chickelit said...: Her reasoning is faulty because the non-compliant will still choose to pay the much lower fine and still skew the system, doing exactly what she says they will.

Long may she not rule!

So the score is 3 to 2 in favor of ObamaCare? How disingenuous of the NYT to write the story in such a confusing way.; 2/22/11, 10:43 PM
Sprezzatura said...: NYT labeled WJC as a D.

Cons rejoice!!!; 2/22/11, 10:43 PM
Chase said...: We all know it's in the basic nature of liberals, Democrats, and those on the left to seek to control the lives of others, forcing their beliefs and agendas on the rest of us.

If this uneducated self-serving idiot judge is upheld, what is to stop Congress from requiring anyone to buy anything Congress wants someone to buy?

Answer: absolutely nothing.

So here's the shorthand America. Democrats want to take away your freedom and like a creeping fungus unchecked, they will never be satisfied with until they have begun reversing the Bill of Rights (hell, most Democrats can't name more than 2 of them).

Think about that the next time you prepare to vote. Nothing will ever change that. Anyone telling you differently is lying to you and wants to control you. All evidence at hand supports it.

Vote Republican or Independent.
Keep America Free and keep your rights.; 2/22/11, 10:44 PM
1775OGG said...: So, now Pete Stark is defining what's permissable and what isn't, eh! Good, so that means that Pete's boy, El Presidente, doesn't have to run for re-election in 2012 since Pete can declare him, Obama the Froist, El Presidente for life.

Seriously? Really? But does that hold true if a Repubthug runs? Or only if a Progressive HopeyChangey is in office?

So, when does the revolt, the 2nd revolution, start?

Cheers?; 2/22/11, 10:45 PM
Chip S. said...: According to Judge K,

"Making a choice is an affirmative action, whether one decides to do something or not do something."

Affirmative action!

Coming soon, Stimulus 3: You Must Buy a Volt. Failing to do so is an affirmative action that adversely affects people who would be better off if you bought one.; 2/22/11, 10:55 PM
I'm Full of Soup said...: To be or not to be - the feds will decide.; 2/22/11, 11:04 PM
MikeR said...: So if after Judge Vinson, the government was expected to not enforce its unconstitutional law, what is it supposed to do now that several district court judges have ruled both way? Even assuming that the feds respect Judge Vinson, what is the correct response to contradictory judgments?; 2/22/11, 11:09 PM
Almost Ali said...: This is my story and I'm sticking with it:

SCOTUS: 5/4 against.; 2/22/11, 11:11 PM
shiloh said...: It's starting to look like a pattern.

Kinda like all those 5/4 votes on the U.S. Supreme Court the past 20/30 years along party affiliation lines.

No surprise, although:

Reagan’s Solicitor General Charles Fried: ‘I Am Quite Sure That The Health Care Mandate Is Constitutional’

In a Senate Judiciary Committee hearing today on “The Constitutionality of the Affordable Care Act,” President Ronald Reagan’s former Solicitor General — Harvard Law Professor Charles Fried — tore into the reasoning of Judge Roger Vinson’s decision striking down the Affordable Care Act, saying the issue should be a “no brainer”:

I am quite sure that the health care mandate is constitutional. … My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress’ Commerce power, “what is this power? It is the power to regulate. That is—to proscribe the rule by which commerce is governed.” To my mind, that is the end of the story of the constitutional basis for the mandate.

The mandate is a rule—more accurately, “part of a system of rules by which commerce is to be governed,” to quote Chief Justice Marshall. And if that weren’t enough for you—though it is enough for me—you go back to Marshall in 1819, in McCulloch v. Maryland, where he said “the powers given to the government imply the ordinary means of execution. The government which has the right to do an act”—surely, to regulate health insurance—“and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” And that is the Necessary and Proper Clause. [...]

I think that one thing about Judge Vinson’s opinion, where he said that if we strike down the mandate everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance.

If the right-wing argument against the mandate is accepted, Fried argued “not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts.”

>

Fried does explain that he is “not a partisan” for the Affordable Care Act, and that he has some doubts about whether it is good policy. But Fried’s position on the law’s requirement that all people carry insurance reflects exactly how the Constitution is supposed to operate. Elected officials are supposed to make policy decisions, not judges who have to ignore entire constitutional provisions in order to impose their policy preferences on the law.

>

One of many reasons mittens er Mitt Romney is gonna have problems in the Rep primaries and Huckabee will probably be the nominee, by default.; 2/22/11, 11:15 PM
Mark said...: If the right-wing argument against the mandate is accepted, Fried argued “not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts.”

In what way is this a problem?

Seriously, if you are willing to stretch interstate commerce that far, what won't you stretch?

Glad to see that the Left recognizes that Reagan's name has power today. But appeals to Authority without appeals to reason betray those making the argument.; 2/22/11, 11:33 PM
Almost Ali said...: ...what is the correct response to contradictory judgments?

In essence, rulings in favor of the law have no material effect. While rulings against the law, do - because opposing action must be taken, especially since Judge Vinson did not issue a Stay - that is, wait for an Appellate Court to uphold his ruling.; 2/22/11, 11:34 PM
bagoh20 said...: Elections have consequences!

BTW, shouldn't the government force us all to vote too?; 2/22/11, 11:48 PM
Chip S. said...: The argument Fried finds so compelling is this: Because the feds want to impose mandates on insurers that would bankrupt them in the absence of compelled purchases by individuals, the individual mandate is "necessary and proper." How his formidable mind brings him to that conclusion is an intriguing question, because it seems obvious that this conclusion is less than completely compelling as a matter of logic or historical legal analysis.

It does not occur to him that the adverse consequences of federal regulation are in fact a "proper" constraint on the reach of the government.

Currently the federal government subsidizes the production of all sorts of things it thinks people wouldn't buy enough of otherwise. What if crippling deficits make such continued spending infeasible? According to Prof. Fried, it's obvious that people could be compelled by law to buy those things. It would be "necessary" to the achievement of the government's regulatory goals, because of the market-imposed constraints on the government's ability to raise revenue through taxation.

Which is to say, Prof. Fried thinks it's obvious that the Constitution does not offer affirmative protection of individual liberty against arbitrary encroachment by the federal government. Unlike him, I do not claim to know what John Marshall would have thought about this, but I think it's quite clear what Madison, Hamilton, Jay, and Jefferson would have thought.

They'd have thought, "Bullshit!"; 2/22/11, 11:50 PM
Revenant said...: Reagan’s Solicitor General Charles Fried: ‘I Am Quite Sure That The Health Care Mandate Is Constitutional’

It is a good thing nobody every put Charles Fried on the Supreme Court, then.; 2/22/11, 11:56 PM
former law student said...: The judges who found it constitutional went to much higher ranked law schools than did those who found it unconstitutional.; 2/22/11, 11:58 PM
Revenant said...: If the right-wing argument against the mandate is accepted, Fried argued “not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts.

"If X is unconstitutional, then [bad thing] will happen" is not an argument that X is constitutional. "Constitutional" is not a synonym for "good". Not that "RomneyCare" is in any way "good", mind you. :)

Anyway, Fried's analysis fails for the simple reason that states aren't limited to a set of constitutionally enumerated powers. States can do anything they are not forbidden from doing. The federal government can do only those things it is specifically granted permission to do.

The federal government is not granted the power to force people to buy insurance; states are not forbidden from forcing people to buy insurance. So Massachusetts can force you to buy insurance even though the federal government cannot.; 2/23/11, 12:03 AM
Revenant said...: The judges who found it constitutional went to much higher ranked law schools than did those who found it unconstitutional.

That doesn't speak well for law school rankings.; 2/23/11, 12:04 AM
Chip S. said...: fls,

You must have gotten far enough along in law school to have encountered the term argumentum ad verecundiam.

Anyway, let's see what happens if one of these cases gets to Judges Posner and Easterbrook.; 2/23/11, 12:06 AM
Almost Ali said...: It's also noteworthy that the Obama Administration filed a Motion To Clarify Judge Vinson's ruling, particularly since Judge Vinson already anticipated such actions:

From Vinson's Declaratory Judgment"

“Injunctive relief is an “extraordinary”… and “drastic” remedy... It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction… declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . .since it must be presumed that federal officers will adhere to the law as declared by the court”

BTW, Motion To Clarify is hardly standard legal procedure. If the administration was serious, they would have filed a Motion To Reconsider -or- immediately appealed.

In other words, they're playing games while feeding ObamaCare Miracle-Grow - praying to Karl it will become they monster they intended.; 2/23/11, 12:13 AM
Almost Ali said...: Correction: ...praying to Karl it will become [the] monster they intended.; 2/23/11, 12:16 AM
Saint Croix said...: I have never been a big fan of Fried, but boy that was a stupid little speech.

I think that one thing about Judge Vinson’s opinion, where he said that if we strike down the mandate everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance.

Apparently in Fried World, failure to put in severability language = constitutional power. What a stupid argument.

And it's hardly "necessary" to pass a law requiring everyone to buy health insurance when the federal government has a legal mechanism--taxation--to raise funds for universal health care.

Then, on top of this, Fried appears to be completely oblivious to the difference between a state that has a general police power, and a Congress that does not.

Cripes, a 1L could do better than this.; 2/23/11, 12:26 AM
cubanbob said...: Has it occurred to the pro-choice-pro-Obama care crowd that having an abortion has economic consequences to the economy? Look at the demographic situation with respects to social security and medicare. Now if the government had mandated woman to have abortions since 1973 there would be nearly enough additional workers contributing taxes to keep those programs afloat. Come to think of it a good statistical study can be done to demonstrate that poor people are disproportionately criminally inclined and consume a disproportionate amount of government revenues and services and that they tend to have children that are more likely to be poor or criminals and therefore they should be mandated to have abortions. Since at the heart of Obama care is the insurance mandate which without the scheme collapses out the inability for government as a whole to pay for it the argument can taken to its logical conclusion that the government can require to purchase or not purchase what it deems in the 'best' economic interests of the nation (with more than a nod to Kelo). Mandatory abortions for the poor and mandatory birthing for the middle class.; 2/23/11, 12:36 AM
Saint Croix said...: The judges who found it constitutional went to much higher ranked law schools than did those who found it unconstitutional.

What an authoritarian argument.

Instead of reading the opinions and judging their merits, you look instead for high-ranking credentials.

It's a flight to authority, a flight to elites. "Harvard has spoken. I dare not question them." What a scary mindset to have.

Aren't you embarrassed, as a former law student, to be arguing with lawyers? I would think you would be cowed, and silent. How dare you speak, peon!; 2/23/11, 12:47 AM
former law student said...: You must have gotten far enough along in law school to have encountered the term argumentum ad verecundiam.

I merely observe a pattern. But if preferring graduates of the top-ranked law schools is fallacious, it is a fallacy almost universally shared within the industry.; 2/23/11, 12:55 AM
Bender said...: It should be noted that even if ObamaCare did not violate the Commerce Clause (and it does, but for the sake of the argument, let's say it doesn't), that still would NOT mean that it is constitutional.

Thus far, none of the court cases have involved any claims under the Due Process Clause. (Of course, none of the states have standing to assert a due process claim.)

And ObamaCare very clearly is violative of both substantive due process and procedural due process.

The automatic imposition of a monetary penalty without any adjudication, that is without any process at all, due or otherwise, is grossly violative of procedural due process.

And it has been clearly established that individuals have a fundamental substantive due process right to refuse medical care, such that government cannot use that as its excuse for forcing people to have something that they do not want and to have to pay for same.

Of course, given all of the waivers being arbitrarily handed out right and left (well, left anyway), it can hardly be said that this is an equal application of the law, thereby raising equal protection issues.

In short, none of the current cases brought by the states are dispositive of the entire issue of the unconstitutionality of ObamaCare.; 2/23/11, 12:58 AM
Chip S. said...: @fls, Employers who hire Harvard Law duds can correct their mistakes easily. People who defer to Harvard Law faculty instead of exercising their own independent judgment surrender the ability to discern, let alone correct, that mistake.; 2/23/11, 1:04 AM
former law student said...: Instead of reading the opinions and judging their merits, you look instead for high-ranking credentials.

What was Professor Bainbridge saying about high-ranking credentials, just a few posts ago? Oh yes:

When we hire people with mediocre law credentials just because they're good at running regressions or have a PhD?

...

If we were still trying to hire folks because they were EIC of a top law review, head of their law school class, had a good clerkship, and some experience in a top law firm doing real law, I'd be more confident of our ability to teach people to think like lawyers

And, naturally such people would be much better at analyzing the constitutionality of a statute, because to teach people to think like lawyers they must themselves excel at thinking like lawyers.; 2/23/11, 1:04 AM
Saint Croix said...: FLS: "I have no opinion on Raiders of the Lost Ark, except to say that Steven Spielberg went to California State University at Long Beach. And dropped out."

FLS: "I have no opinion on Abraham Lincoln, except to note that he was born in a log cabin and only went to school for 18 months. Sure didn't go to Harvard. Damn self-taught country lawyer out in the boonies."

FLS: "I have no opinion on James Madison, or the U.S. Constitution, but I do note that the author never went to law school, and couldn't get into Harvard if he tried."

FLS: "I have nothing to say about MacBeth, except that Shakespeare was a damn actor and a nobody and who the hell does he think he is, anyway?"

FLS: "And that Jesus guy, don't get me started."; 2/23/11, 1:25 AM
Saint Croix said...: FLS: "I don't know if Buster Keaton is funny until I see his resume."; 2/23/11, 1:31 AM
BJM said...: @fls

it is a fallacy almost universally shared within the industry.

Argumentum ad Ignorantiam; 2/23/11, 1:39 AM
Revenant said...: Argumentum ad Ignorantiam

Argumentum ad populum, actually.; 2/23/11, 2:18 AM
Anonymous said...: Justice?

Why is it that judges appointed by Democrats can't find any Constitutional problem with ObamaCare but judges appointed by Republicans easily find a Constitutional problem?

Is the Constitution merely a partisan political weapon?

Why not teach your law students that it doesn't really matter how good your legal arguments are or what precedents you cited in your argument?

That what really matters is whether or not you donated to Barack Obama and the Democrats.

If you donate to Democrats, you'll win your case for your client if your client is also a Democrat.

But if you didn't donate the right way ... the judge will rule against you.

Isn't that the message these judges are making clear?

And if justice is only a matter of which side appointed the judge then really ... why do we need trials?

Seems like a waste of good money to put on a show.; 2/23/11, 4:21 AM
tim maguire said...: That's very disappointing. It cannot be good for the judiciary to have such an apparently political judicial result. How can anyone respect a judicial system where all the Democratic appointees vote one way and all the Republican appointees vote another?; 2/23/11, 5:20 AM
Unknown said...: Tell me again how Willie was a centrist.

shiloh said...

Reagan’s Solicitor General Charles Fried: ‘I Am Quite Sure That The Health Care Mandate Is Constitutional’

He appointed lot of RINOs.

Ut said...

Justice?

Why is it that judges appointed by Democrats can't find any Constitutional problem with ObamaCare but judges appointed by Republicans easily find a Constitutional problem?

Is the Constitution merely a partisan political weapon?

Which is why we should have term limits for Federal judges, including SCOTUS, as well as Congress.; 2/23/11, 5:37 AM
X said...: The judges who found it constitutional went to much higher ranked law schools than did those who found it unconstitutional.

quotas dictated admitting less qualified candidates.; 2/23/11, 6:56 AM
Dear corrupt left, go F yourselves said...: Fine. The democrats can all have "free" health care; Since ObamaCare is supposed to be so "affordable".

Once again, if the new law is so amazing, why do all the democrat unions get a waiver?; 2/23/11, 7:01 AM
Fen said...: I don't see what the big deal is. As Obama (offshore drilling mort) and the Dems in Wisconsin and Indiana have demonstrated, if we don't like the outcome we can simply refuse to abide by it.; 2/23/11, 7:54 AM
rhhardin said...: What's needed to settle this is a wise Latina.

The Constitution is so yesterday.; 2/23/11, 7:58 AM
Calypso Facto said...: tim said: How can anyone respect a judicial system where all the Democratic appointees vote one way and all the Republican appointees vote another?

Exactly. I know I should be past the jaded stage already, but this is still very disheartening. How can even the pretense of impartial justice be maintained when the party of the appointee means more than the plain language of the Constitution. It is a recipe for outright lawlessness.; 2/23/11, 8:27 AM
Phil 314 said...: The judges who found it constitutional went to much higher ranked law schools than did those who found it unconstitutional.

Translation:
We're smarter than you

(come to think of it both George W Bush and Barack Obama received an advanced degree from Harvard. I DO see the pattern! not to mention that both LBJ and Reagan went ot rinky dink small schools. Yes, its all clear to me now.); 2/23/11, 9:39 AM
Dust Bunny Queen said...: All of this......

The Government forcing people to buy things they don't want.

The Government Unions forcing people to pay taxes for lavish benefits and retirements that the people will never hope to have.

The Unions threatening to shut down the economy and make everything more expensive until the tax payers poney up more money.

The entitled class demanding unemployment benefits for years and years instead of taking jobs that are available while the taxpaying class works two or even more jobs just to get by.

The welfare class voting themselves ever more benefits, food stamps, housing. Complaining about any delay in their "checks". Standing in the grocery line loading their carts with goodies while the working man or woman has to decide between milk, bread or heat.

Assholes on the Daily Show laughing at the situation, abusing animals for their own entertainment, sneering at the people who are working and slaving to pay for all of the above.

None of this is going to turn out well.

And as far as I am concerned....the sooner the better.; 2/23/11, 9:58 AM
former law student said...: come to think of it both George W Bush and Barack Obama received an advanced degree from Harvard.

George's home state law school denied him admission, so he had to settle for Harvard Business.

I DO see the pattern! not to mention that both LBJ and Reagan went ot rinky dink small schools.

Few people born before WW I imagined going to college at all -- the local college seemed good enough to most who did. Baby boomers' expectations were reversed.; 2/23/11, 10:06 AM
former law student said...: The Government Unions forcing people to pay taxes for lavish benefits and retirements that the people will never hope to have.

I guess dbq is unfamiliar with the concept of deferred compensation.

And I find it interesting that people who find interclass envy to be shameful, resent the people who teach the community's children, patrol the community's streets, or provide urgent care to the community's stricken. What about the stipend our hostess receives? An undeserved increment?; 2/23/11, 10:09 AM
Dust Bunny Queen said...: I guess dbq is unfamiliar with the concept of deferred compensation

I guess you are unfamiliar with the difference between a Defined Benefit Plan where the result is guaranteed, where the employer contributes a huge amount and in the case of Government employees contributes 100%. The employees in the government aren't deferring anything or taking any chances.

or

Defined Contribution plan where there are no guarantees of return or guaranteed benefit...... and generally no employer contribution. Where every penny the employee contributes comes FROM cash flow as deferred contribtuion.

Don't argue with me on this little boy, this is what I used to do for a living for over 20 years.

FLS, (and those just like him), have my vote for being the first asshole to stand up against the wall.; 2/23/11, 10:27 AM
Phil 314 said...: resent the people who teach the community's children, patrol the community's streets, or provide urgent care to the community's stricken. What about the stipend our hostess receives? An undeserved increment?

You've nailed Sir. Exactly, we despise the lowly teacher thinking he/she can dare ask for a living wage.

We are clearly not as enlightened as you to fully understand that without the ability for a policeman or a teacher or a fireman to retire at age 50 at 50% or more of their previous salary and then go back as a paid consultant to the same system we could never get qualified applicants.

We cannot appreciate, as you do, that our children's education, our safety and our fire safety is of such a high importance that we must
pay any price, bear any burden, meet any hardship to assure the survival our this great nation.

Now, if had gone to Harvard, I would understand that.; 2/23/11, 10:29 AM
Anonymous said...: Since the government now has the legal authority to regulate "decisions"-

I remain undecided.

loopholes....; 2/23/11, 10:29 AM
Raul said...: This, from The Queen: "It's starting to look like a pattern."

No shit?

You just sumbled onto this potential nugget of political reality?

No wonder you teach law...what a mind.; 2/23/11, 10:47 AM
Jeremy said...: Chase - "We all know it's in the basic nature of liberals, Democrats, and those on the left to seek to control the lives of others, forcing their beliefs and agendas on the rest of us."

Things like a woman's choice, gay marriage...stuff like that?

YOu get dumber by the day.; 2/23/11, 10:49 AM
A.Worthing said...: the worst part of the decision is when they equate mental activity with physical activity.

i talk more about it, here.

http://patterico.com/2011/02/22/breaking-d-c-district-court-upholds-obamacare/; 2/23/11, 11:47 AM
Unknown said...: Hey, Professor Althouse, I actually think this one is way more relevant to the Commerce Clause than Lopez. We should totally talk about it in class tomorrow (just a subtle hint).; 2/23/11, 12:53 PM
Peter Hoh said...: Would that be the same pattern we saw in Bush v. Gore?; 2/23/11, 2:10 PM
virgil xenophon said...: LOL DBQ! As a financial planner/life underwriter first for Physician's Planning Service in Louisville and than the equivalent arm "Physicians Nationwide" for Northwestern Mutual Life (Milwaukee,Wisc) and later as the Coordinator, life insurance/pension services for Merrill Lynch in Louisville and later head Tax-shelter/pension coordinator at old Dean Witter in Louisville, non-qualified deferred compensation agreements were my personal love and specialty! Give 'em "UN-qualified" hell!; 2/23/11, 2:25 PM
Issob Morocco said...: Yes a pattern of activist judges (mostly of the Democratic bent) stretching the limits of logic beyond a recognizable end. And hence creating weak and impossible connection to support their beloved leader.

These are the consequences of electing Dimmycrats and the residue their victories leave upon free men and women.; 2/23/11, 5:00 PM
Anonymous said...: @@Revenant and Saint Croix: I'm embarrassed to state that I took not one, but two classes taught by Professor Fried almost 20 years ago, but at least back then he knew the difference between the federal government and a state. In his defense, he was on the Supreme Judicial Court of Massachusetts for a while, which to the rest of us appears to be the high court of one branch of a mere state (and not a very big or important one at that, but I digress), but to him must have seemed an omnipotent and omniscient body (ruling on gay marriage and all), so I can see how his self-image might have led him to believe in his heart that as goes Boston, so goes the nation. Alas, there is no federal Commerce Clause in the Massachusetts constitution, so selective incorporation must have been the mechanism through which he applied it RomneyCare.; 2/23/11, 6:10 PM