D.C. Appeals Court strikes blow to Rob McKenna

Okay…maybe they didn’t strike a blow directly to Rob Mckenna, but by upholding the “individual mandate” in last year’s health care reform bill today, the Appeals Court for the District of Columbia Circuit has struck another serious blow against the multi-state lawsuit.

Today’s ruling makes the third Appeals Court to uphold the law and the controversial individual insurance mandate. (I reviewed the pending lawsuits and decisions through July here.) One court has ruled against the law: the 11th Circuit Court in Atlanta ruled 2-1 on August 11th against the insurance mandate provision in the law. This is the Teabagger-inspired lawsuit that Washington state AG Rob McKenna unilaterally joined against the will of the Governor, the Legislature, and the people. Mckenna takes credit for the instigating the lawsuit.

In today’s ruling the majority rejects the the Appellants’ central objection that, “Congress, for the first time, has actually commanded that all Americans purchase a product, health insurance”

We look first to the text of the Constitution. Article I, § 8,cl. 3, states: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (emphasis added). At the time the Constitution was fashioned, to “regulate” meant, as it does now, “[t]o adjust by rule or method,” as well as “[t]o direct.”

To“direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.”28 In other words, to “regulate” can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term “commerce” limited to only existing commerce. There is therefore no textual support for appellants’ argument.

Of course, they then look to previous Supreme Court decisions. The bottom line: the Court rejects McKenna’s bullshit.

And my lunch break is over, so enjoy the rest of the opinion.


  1. 1


    Another Republican politician (McKenna) who kow-tows to the lowest common denominator in order to curry favor with the most ig’grint voters.

    No surprise there. But, as a highly trained lawyer from a prestigious institution of higher learning, it is alarming that our AG has no real respect for the Constitution of this nation.

    So little, that he will attach his name and reputation to this idiotic lawsuit. I don’t trust this political whore.

  2. 2

    Roger Rabbit spews:

    “from a prestigious institution of higher learning”

    U. of Chicago, no less. And he worked for Perkins Coie (which, if you didn’t know, is a giant corporate law firm that represents, among others, the Democratic Party of Washington. It’s really hard to understand why he went rogue.)

  3. 3

    rhp6033 spews:

    # 2: Well, Perkins Coi represents a lot of corporations – I believe Boeing has been their biggest client, for generations (although that might have changed after Boeing re-located to Chicago). They used to go through associates like crazy, having them rack up billable hours to Boeing and other corporate clients (“if you aren’t thinking about a case while you are on the toilet and billing that time out, you should be”).

    Of course, only a few associates ever were offered partnerships each year, according to those who I knew who worked for them at one time or another. I suspect the partnerships were reserved for those who could bring in clients with money (i.e., their mommy or daddy control a fair-sized business, and belong to the country club/yacht club).

  4. 4

    Roger Rabbit spews:

    @3 Yeah, corporate law firm practice is brutal. Very Darwinian. You work 100 hours a week to bill 2,500 hours a year and have no family life. But if you make the grade you get to live in a million-dollar house. For whatever that’s worth.

  5. 6

    Libertarian spews:

    Greeting, my most excellent Neo-Socialist friends!

    Once fully enacted, please do not complain about ObamaCare!

  6. 7

    Michael spews:

    Okay…maybe they didn’t strike a blow directly to Rob Mckenna,

    Bummer! I”m pretty sure Justice Sotomayor could take him.

  7. 8



    please do not complain about ObamaCare!

    Yeah…and FUCK YOU! I will almost certainly find reason to complain about ObamaCare. It’s a start, but there is much room for improvement.

    Why the hell wouldn’t I complain if I have complaints?!?

  8. 10

    screed spews:

    Yipeee! Government can now force us to buy crappy products from disreputable mega corporations! Yay! What is next? Replace Social Security with an individual mandate to buy stocks and mutual funds from Wall Street? Yay!

  9. 12


    re 10: You are not forced to buy anything. You are just not eligible for an approximately $750 deduction on your Federal income tax. And for being such an irresponsible asswipe, you will still be eligible for medical care.

    By your logic, renters are being forced to buy houses because they can’t take the interest deductions on a mortgage.