Yesterday, Judge Gladys Kessler upheld the constitutionality of the Affordable Care Act. As Ben Smith notes, Kessler's decision maintains the perfect partisan streak in ACA rulings -- she was appointed to the bench by President Bill Clinton.
Reading Kessler's ruling, I was reminded of Steve Benen's post calling attention to the fact that rulings upholding the law generally receive much less attention than rulings overturning it. There are obvious reasons for this, namely that successfully overturning the ACA would destroy the Obama administration's biggest domestic policy accomplishment. But it's also because the rulings that uphold the law are boring.
I don't mean the judges that uphold them aren't intelligent. I just mean that because they follow established precedent, they're less exciting. Kessler's ruling just upholds existing law. Kessler takes a brief shot at Judge Henry Hudson's "activity/inactivity" distinction within the context of health-care reform, writing that "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." But that's interesting largely because it's one judge implicitly talking to another.
As far as legal precedent is concerned, we know from Wickard and Raich that the courts have previously upheld Congress' ability to regulate activity that "substantially" affects interstate commerce, even when those individuals aren't, to use Hudson's words, attempting to "enter the stream of commerce." In Wickard, a farmer was stockpiling wheat for his own use, and in Raich, the plaintiff was also growing medical marijuana for personal use. Rulings upholding the ACA mostly just reiterate existing law, as opposed to substituting in its place the philosophical slippery slope arguments about individual liberty that are currently in fashion among Republicans when they discuss health-insurance coverage.
It's becoming really cliche to note that the only thing that matters is what the Supreme Court says, but the justices there will have to consider the broader impact on the law of a ruling overturning the ACA in ways the lower judges won't. For them, these rulings have all the impact of a late night argument in a hotboxed dorm room, and some of the judges have certainly been treating them that way.
