That’s not counting the six or so judges that’ve tossed challenges to the law on procedural grounds.
The latest sustainer comes from Gladys Kessler, a very highly respected jurist for the District of Columbia’s federal district court. The decision nails this critical point: the Supreme Court has twice rejected the notion that studied avoidance of interstate commerce thereby ducks the Commerce Clause. Opting out of the insurance industry is therefore reachable, because it still impacts the industry.
Critical quotes, from a PDF hosted by ThinkProgress. First, a choice is an action, even if it’s a choice not to act:
As previous 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 fall swithin Congress’s power. [. . .] 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 theserious economic and health-related consequences to every individual of that choice. Making a choice is an affirmativeaction, 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.
And second, tea party hysterics are not constitutional arguments. Slip Op. at 45.
The crux of Plaintiffs’ arguments is that [the individual mandate] is an unprecedented attempt by Congress to regulate individual behavior, and thereforethreatens individuals’ freedom of choice. Appealing as this emotionally charged argument may sound, the ACA is not as unprecedented as Plaintiffs claim: as already discussed, Congress’s broad power to regulate individual behavior under the Commerce Clause is well established.
Slip Op. at 54. Ouch.
But the real fun starts late in the opinion. Plaintiffs in this case tried to state a claim under the Religious Freedom Restoration Act (RFRA), a Gingrich-era publicity stunt, summarily limited by the Supreme Court on most of its important provisions, that would have enlarged protections for religious conduct otherwise illegal, or limitable, under laws of general application. Naturally, the principle appeals to the Christian hard-right’s huge persecution complex but, as stated, RFRA was virtually neutered by City of Boerne v. Flores, 521 U.S. 507 (1997).
Plaintiffs didn’t get the memo, and argue, instead, that because they rely on God to protect their health, and “object to participation in the health insurance system, the Act imposes direct and substantial religious and financial burdens upon [them].” Well, no:
Finally, as Defendants point out, Plaintiffs routinely contribute to other forms of insurance,such as Medicare, Social Security, and unemployment taxes, whichpresent the same conflict with their belief that God will provide for their medical and financial needs.
And the ACA places no real burden on religious expression, because the Plaintiffs can opt out by paying the fee, and this is the least restrictive means of lowering healthcare premiums:
[W]hen pressed at oral argument to name a less restrictive means of lowering health insurance premiums or otherwise improving access to health care, Plaintiffs could not do so.
You see, unlike in Republican politics, we don’t operate, in law, under the premise that government doesn’t, shouldn’t, and can’t solve real problems. We actually have to think things through sometimes.