The New York Times
A Third Judge
Validates Health Care Overhaul Law
By KEVIN SACK, from
the Web, February 25, 2011
A third federal judge upheld the
constitutionality of the Obama health care law on Tuesday, reinforcing the
divide in the lower courts as the case moves toward its first hearings on the
Judge Gladys Kessler of Federal District Court for the District of Columbia
became the third appointee of President Bill Clinton, a Democrat, to reject a
constitutional challenge to the Affordable Care Act. Two other federal
district judges, both appointed by Republican presidents, have struck down the
law’s keystone provision, which requires most Americans to obtain health
insurance starting in 2014.
One of those judges, in a case filed in Florida, ruled that the rest of the law
could not be severed from that provision, and suggested that the entire act was
therefore invalid. The Justice Department, which represents the Obama
administration in the cases, has asked the judge for clarification of his
ruling, which left states confused about whether to continue carrying out the
Although the issue will almost certainly be determined by the Supreme Court,
each lower court ruling contributes to the balance of legal opinion that the
justices will consider. More than 20 challenges to some aspect of the
sprawling act have been filed around the country. Oral arguments in the
first appellate reviews are scheduled for May and June.
The District of Columbia case was filed by five individuals represented by the
American Center for Law and Justice, a conservative Christian legal group.
Judge Kessler adopted the government’s position on whether Congress’s authority
to regulate interstate commerce is so broad that it can require people to buy a
commercial product. Past Supreme Court decisions have established the
standard that Congress can control “activities that substantially affect
The judge suggested in her 64-page opinion that not buying insurance was an
active choice that had clear effects on the marketplace by burdening other
payers with the cost of uncompensated medical care.
“Because of this cost-shifting effect,” she wrote, “the individual decision to
forgo health insurance, when considered in the aggregate, leads to substantially
higher insurance premiums for those other individuals who do obtain coverage.”
Judge Kessler added: “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.”
The judge also tossed out a claim that the law restricted the plaintiffs’
exercise of religious freedom because the mandate to buy health insurance
conflicted with their belief that God would provide for their well-being.
She wrote that such a burden, if it existed at all, was too minor to require
invalidation of the law.