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What Passes For "Smart" Conservative Analysis Of The Affordable Care Act

By Big Tent Democrat

Ezra Klein points to this critique of Judge Gladys Kessler's opinion (PDF) upholding the Affordable Care Act. Ezra writes:

Avik Roy argues against Judge Gladys Kessler's ruling upholding the individual mandate. I'm linking to this for two reasons: One, to remind myself to blog on it tomorrow. Two, to recommend bookmarking Roy's blog for a smart conservative take on health-care policy.

I read the critique and am still looking for the "smart." I'll explain why on the flip.

Roy writes:

Judge Gladys Kessler’s 64-page ruling in this week’s case, Mead v. Holder, hinges on two weak concepts: (1) that the “free rider” problem is fundamental to the health care market; and (2) that Congress has the power to regulate “mental activity.” Yes, you read that right. On page 45, Judge Kessler argues that the Commerce Clause of the Constitution allows Congress to regulate “mental activity”[.]

This is what Judge Kessler actually wrote:

[P]revious 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. See Thomas More Law Ctr., 720 F.Supp.2d at 893 (describing the “activity/inactivity distinction” as an issue of first impression). However, 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.

(Emphasis supplied.) First, let's accept that Judge Kessler's phrase "mental activity" is unfortunate at best. (To be honest, I found much of Kessler's wording in her opinion to be wrongheaded, even though her result was ultimately correct.) But this is sheer sophistry from Roy. Kessler is saying that interstate commerce, and more specifically, economic decisions that have a substantial effect on interstate commerce, can be regulated, including decisions to not engage in commercial activity. In Thomas More Law Center v. Obama, Judge Steeh describes the issue more felicitously:

While plaintiffs describe the Commerce Clause power as reaching economic activity, the government's characterization of the Commerce Clause reaching economic decisions is more accurate.

Agree or disagree with the reasoning, the question is not one of reaching "mental activity." After all, the government is not stopping anyone from thinking they should not have to buy health insurance. What the mandate intends is to make you purchase health insurance. It does not regulate mental activity, but rather the economic decisions on purchasing (or not purchasing) health insurance.

You make think that the Commerce Clause does not empower the Congress to mandate that you purchase health insurance (I think it does), but no honest and intelligent person can pretend that the Congress is trying to regulate "mental activity."

(FTR, this entire "activity/inactivity" nonsense is all beside the point. Whether the Commerce Clause empowers Congress to impose a mandate to purchase health insurance or not, the Necessary and Proper Clause empowers the Congress to enact laws necessary to the enactment of a regime to regulate the health insurance market, regulation which no one can argue is not within the Commerce Clause power. )

So, where do we find the "smart" conservative critique of ACA? Ezra gave me a bum steer.

Full post as published by TalkLeft on February 25, 2011 (boomark / email).