Judge Kessler's Health-Care Ruling

Judge Gladys Kessler has held that the Affordable Care Act (ACA) is constitutional [PDF]. TAP's Adam Serwer has already noted two salient facts about the ruling: It continues the unbroken pattern of judges holding the act constitutional or unconstitutional along partisan lines, and Kessler made a persuasive argument that the "activity/inactivity" distinction -- opponents of the ACA say the commerce clause of the Constitution only allows you to regulate economic activity, so taxing those who fail to buy insurance is beyond its scope -- is just empty semantics.

There are a couple of other things about the opinion that are noteworthy. First, Kessler's opinion is strong on the crucial point of why this case is much more like Raich or Wickard v. Fliburn (cases where Congress' powers were upheld) than Lopez and Morrison (the two post-New Deal cases in which Congress was held to have exceeded its powers to regulate interstate commerce). In Lopez, Kessler notes, Chief Justice Rehnquist held that a regulation of even non-economic activity was constitutional if it constituted "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” The fact that the mandate is essential to the ACA is far more relevant than the irrelevant "activity/inactivity" distinction; it is an essential component of the larger regulatory scheme. And second, as Jon Cohn notes, Kessler also explains why upholding the ACA would not create a slippery slope that would allow Congress to regulate anything it wanted.

Overall, it's a solid opinion that makes an excellent case for the constitutionality of the ACA.

-- Scott Lemieux