Working for the Common Good 

"U.S. District Judge Gladys Kessler didn't just endorse the constitutional legitimacy of the Patient Protection and Affordable Care Act on Tuesday evening. She used her 64-page ruling to answer some of the most basic criticisms of the new federal health care law. And she was as blunt in its defense as two of her colleagues on the federal trial bench, in Florida and Virginia, have been in striking down the contentious measure."

In a footnote, Judge Kessler wrote: "To put it less analytically, and less charitably, those who choose -- and Plaintiffs have made such a deliberate choice -- not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives."

By playing the "free ride" card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation's colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it's in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.

Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: "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."

Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power.' and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended"

Imported from external blog