On Tuesday, Judge Norman Moon of the Western District of Virginia delivered the most recent rebuke to the dozens of private actors and states seeking to roll back President Obama’s seminal Patient Protection & Affordable Care Act. Judge Moon’s opinion (pdf/discussion) is also a model of simplicity, which cuts through the sillier arguments leveled by both sides (e.g., the Obama administration’s ripeness argument is unsurprising, but so is its failure to convince any judge to date), to get to, and summarily dispose of, the heart of the matter.
We can reduce the central argument in the healthcare lawsuits to, as noted above, one syllogism and one follow-up question. First the syllogism.
- Congress may regulate economic activity by the Commerce Clause; but it may not regulate social policy with incidental economic effects.
- Insurance is an economic activity with incidental social ramifications.
- Therefore its regulation lies squarely within Congress’ power.
Objections to the Act premised on the Lopez/Morrison/Raich line, which together animate the first point, border on the frivolous. As Judge Moon notes, Congress correctly asserts, in the statute, that it has held the power to regulate the insurance industry, unchallenged, for more than sixty years.
Opponents of healthcare reform find their best argument when pushing on the second point, to ask whether the regulation of an omission with economic ramifications is so unique as to take us out of this familiar framework. Although plaintiffs will correctly point out that the regulation of inactivity is novel in Commerce Clause jurisprudence, the activity/inactivity distinction, which did not persuade Judge Moon, is not one likely to persuade other federal judges either, for the simple reason that the law regularly treats omissions as affirmative acts. In the law of securities and torts, just to name a few, it is recognized that conscious omissions carry consequences. Since Congress is allowed to (and should) recognize economic realities, Judge Moon’s handling of the case is what we should continue to expect.