Oh Great, Now a Federal Judge Rules the Government Can Regulate Thought


What a day. Heck, what a week. Democrats in states like Wisconsin and Indiana lost big in November, yet they’ve still found a way to win by literally running away. The price of oil is surging, and gas prices are expected to rise as high as $6 per gallon by summer, yet the Obama administration isn’t issuing permits for drilling here at home. A madman in the middle east is killing citizens by the hundreds, and our president remains silent on the matter. But he does have time to issue statements condemning the actions of state governors and riling up his union base. There’s still no fiscal year 2011 budget, so Obama and his AG Eric Holder thought they’d reveal they believe Don’t Ask Don’t Tell is unconstitutional. As if it’s their place to do so.

That list is only what I could think of off the top of my head. Which brings me to the point of this post. A federal judge has issued a decision upholding the ObamaCare mandate because, in her view, Congress has the right to regulate mental activity. Yes, that’s right. She believes Congress has the right to regulate thought. To quote Stacy McCain: Paging George Orwell.

Professor William Jacobson thought he might be ill after reading the judge’s ruling, which states the following:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. 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.

Jacobson’s response:

Our thoughts are now actions.  There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.

I thought maybe I’d be ill, too. But then I read Aaron Worthing’s analysis and felt a tiny bit better.

And in the end you already know why this fails as logic.  Because by the same reasoning, I am engaged in the mental economic activity of not buying a GM car, so surely that activity can be regulated by forcing me to buy one.  To be blunt, I think this “mental activity” argument is so specious it harms her case.  I can almost hear Scalia mocking the concept as mercilessly as he did the Defenders of Wildlife in Lujan v. Defenders of Wildlife (“Respondents’ other theories are called, alas, the ‘animal nexus’ approach…”).  It literally fails the laugh test.

She also deals with the Necessary and Proper Clause.  She believes the necessity merely has to be “in the air” to borrow an old legal cliche.  I rebutted that view, here.  It is not enough for it to be necessary, but that it be necessary to carry into execution the other powers of the constitution.  Mitigating the economic fallout from another part of the statute doesn’t count.

You’ll never guess who appointed Judge Gladys Kessler. (Hint: His last name starts with C.)

Related: ObamaCare is already damaging health care. (Just wait until it’s fully implemented!)

Hey, remember when “The Dream Police” was just a song?