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Tuesday, April 26, 2011


O Say Does That Star Spangled Banner Yet Wave O’er The Land Of The Free And The Home Of The Brave? As of a few days ago, the question “land of the free” suddenly arose in a most unexpected way. Judge Gladys Kessler of the District Court in Washington D.C. made a ruling that upheld the individual health insurance mandate in the PPACA (Patient Protection And Affordable Care Act, also known as Health Care Reform, also known as ObamaCare). Judge Kessler ruled that the provision in PPACA mandating individuals purchase health insurance is within the federal government’s powers as granted in the U.S. Constitution. Briefly stated: the ruling compels an individual (you) to buy a product or service which you may not want--your choice to not buy will no longer be a choice--so says a federal act. That appears to take care of the “Land of the Free”. Will we allow that to happen? Does “Home of the Brave” also disappear?
The text of the ruling by Kessler follows, as taken from the Constitutional Law Prof Blog, March 4, 2011:

“Judge Kessler went on to rule that Congress rationally concluded that the decision not to purchase insurance substantially affected the health care market, and that the individual mandate was an essential part of the regulatory scheme--that it was a critical tool in preventing free-riding and cost distribution by those who would opt out. She dismissed the plaintiffs’ related argument that the non-purchase is non-activity , not subject to Commerce clause regulation:
“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 to do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.”

The above text is part of a multi-part ruling made by Kessler centered on what constituted economic activity and whether that came under the Constitution Article 1 Section 8. Since the ruling last week law professors and pundits have been at work trying to figure out what this may mean, not only to ObamaCare, but to commerce and individual freedom as it is widely understood up to now. Some have already sounded the warning trumpets that this may mean that individual freedom may extend only as far as the federal government allows or tolerates. Some say, perhaps facetiously, since the federal government is part owner of General Motors, the mandate may come that the Chevvy Volt will be “the car of choice” for new car buyers. After all, the success of GM coming out of hard times depends upon car sales, and since we as citizens have interest in the economic success of “our car company”, it will be mandatory, and Constitutionally defensible, that the Volt be your next car purchase.
Buying a Volt may re-instate the last line of our Anthem: “Land of the Free and the Home of the Brave”. The Volt will set you FREE from the high cost of gasoline at the pump. And as you drive the Lady-Bug-Looking midget you will certainly feel brave as you are hugged between a couple of 18 wheelers on Interstate-94.

Hal is a ND native who grew up near McClusky. Hal and his wife Lois live in Bismarck  and have four children and eight grand children.

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