Legal Commentary

Another District Court Decision on the Constitutionality of the Individual Mandate

By Orin Kerr

This one is Mead v. Holder, from Judge Kessler of the United States District Court for the District of Columbia, who concludes the mandate is constitutional. From the opinion:

[T]he individual mandate provision is an appropriate means which is rationally related to the achievement of Congress?s larger goal of reforming the national health insurance system. In other words, § 1501 is a clear-cut example of ?an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.? Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Thus, the Court reaffirms its conclusion that Congress acted within the bounds of its Commerce Clause power, especially whenconsidering the Necessary and Proper Clause, when it enacted § 1501.
As this analysis makes clear, the principles established by the Supreme Court in its Commerce Clause jurisprudence, which of course must guide this Court?s analysis, compel the conclusion that § 1501 was enacted pursuant to Congress?s Commerce Clause power.

On the proposed activity/inactivity distinction:

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.

Thanks to the BLT for the link.

Full post as published by The Volokh Conspiracy on February 22, 2011 (boomark / email).