Partisan Care

By Advokat December 16, 2010

Democrats are leading Republicans 2-1 in the latest tally of results from litigation challenging the Obama health-care plan. Maybe it is just a coincidence that of the three federal district courts to decide the constitutionality of the Obama health-care plan, the two judges appointed by a Democratic president ruled the plan constitutional, while the one judge appointed by a Republican president ruled the key element of the plan—the mandate that all individuals carry health insurance or pay a penalty—unconstitutional. In light of the fact that the central issue in the litigation—whether the choice not to participate in interstate commerce by not buying insurance is subject to federal regulation under the commerce clause of the United States Constitution—is without precedent (i.e. has not been decided before), the personal predilections of the judges at issue (even if subconscious) become an issue itself.

On Monday, a federal judge in Virginia, a lifelong active Republican who had been appointed to the bench by former President George W. Bush, (and who is a co-owner of a conservative political firm that worked for repeal of the law) ruled that Congress exceeded its power under the commerce clause in mandating the purchase of health insurance. The key issue in deciding the scope of congressional power here is whether the activity being regulated substantially affects interstate commerce. The Virginia judge acknowledged what even the opponents have had to acknowledge in court: that the purchase of insurance and insurance payments affects interstate commerce. The judge further acknowledged that the collective decisions of individuals to participate or not in the health-care market are a proper subject of the commerce clause. But the key question came down to whether an individual’s decision not to purchase—inactivity, in the words of the court—could be regulated by Congress. The court held inactivity could not be regulated as the scope of the commerce clause is limited to regulating affirmative acts of individuals to engage in economic activity.

The court held no reasoning that the commerce clause was limited to regulating affirmative acts of individuals to engage in economic activity. Two prior courts, including one that was located a mere 100 miles away, ruled just the opposite.

There is nothing wrong or unusual with federal district courts disagreeing with each other especially on a question of law without clear precedent. But the partisan nature of the debate over the health-care legislation and the seemingly partisan divide of judges should raise eyebrows. Here in Washington, our Republican attorney general, Rob McKenna, joined litigation now pending in Florida challenging the constitutional of the Obama Health Care plan on behalf of the state. That litigation was filed—not coincidentally—in a federal district court in a conservative part of Florida, where the trial judge was appointed by George W. Bush. The Florida lawsuit, thus, is an example of forum-shopping in which a litigant files in a court it feels will be more favorable to its decision. McKenna by deciding to participate in the Florida suit rightfully can be called out for engaging in forum shopping.

Ultimately the constitutionality of the health-care legislation will reach the U.S. Supreme Court—hardly the impartial arbiter one would hope for to settle the partisan, contradictory rulings from the lower courts. One of the most egregious recent examples of partisan decision-making occurred: In Bush v. Gore, the court lined up along Republican and Democratic lines, even though the issue (a state's right to determine its own election results) is one that typically draws the support of the conservatives (i.e. the Republican-nominated justices who voted for Bush).

But what about the merits? Ironically, I think the right answer can be discerned from the University of Chicago School of Economics—a bastion of conservative free-market thinking. Under the Chicago school, all decision-making—including the decision not to do something—is driven by free choice and a determination of what is in an individuals’ best interest. By that theory, the decision not to buy insurance is not inactivity but a calculated decision to risk the upfront cost versus the consequences of injury or health problems later. That is the very type of economic activity that drives up costs in the health-care industry and that the Obama legislation seeks to address. So holding that a choice not to purchase insurance is not economic activity confounds the central economic theory that conservatives—including many on the Supreme Court—typically hold so dear. In that light, a decision to hold the health-care legislation unconstitutional, if that is the result, cannot help but to seem partisan.
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