ObamaCare and the Thought Police
And when I say "thought police" I'm not being metaphorical. In upholding the constitutionality of ObamaCare's individual mandate, Clinton-appointee Gladys Kessler last week held that the Commerce Clause empowers Congress to regulate "mental activity" as much as "physical activity" (see p. 45 of the decision). But take comfort, the mental activity has to be "economic" in nature.
Kessler's reference to "mental activity" was an inelegant attempt to build on the earlier decision (see my posts here and here) of another Clinton judge, George Steeh, who ruled that the Commerce Clause empowers Congress to regulate "economic decisions" such as the "decision" not to purchase health insurance. Such negative "decisions" are the main subject of Judge Kessler's analysis, but still, the "mental activity" language is out there in the US Reports, just waiting for another activist judge to build upon in a future case.
And even if we limit the "mental activity" to "economic decisions" the slope is just as slippery. Steeh and Kessler try to argue that health care is a special case because sooner or later, every human being needs health care, so you can't opt out of the system. This is the eternal cry of the judicial activist: it's just this one time!
Don't believe them. As Ilya Somin brilliantly points out at the Volokh Conspiracy, this argument can be applied to any future mandate. Can Obama mandate that you eat your veggies? Of course, because every human being needs "food." Can Obama mandate that you take public transportation? Sure, since every human being needs "transportation," it's unfair for some people to neglect public transportation.
Let us pray for a appellate smackdown on Judge Kessler. Otherwise, get ready for the electric car mandate. And don't think bad thoughts about government coercion. That sort of "mental activity" will be banished.
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Dec '10
Re: ObamaCare and the Thought Police
Can Obama, in the name of avoiding Federal expenditures on health, education, and food and housing assistance, mandate that a woman abort a pregnancy deemed by the State to be fiscally unwise? Under the Kessler standard, why not?
Jul '10
Re: ObamaCare and the Thought Police
Kessler's opinion was that the Federal government has the power to regulate any "action" having to do with commerce and that choosing not to take an action is, in itself, an action.
To the barricades, brothers....
Edited on Feb 28, 2011 at 3:06pmAug '10
Re: ObamaCare and the Thought Police
Kenneth: Kessler's opinion was that the Federal government has the power to regulate any "action" having to do with commerce and that choosing not to take an action is, in itself, an action.
To the barricades, brothers.... · Feb 28 at 3:05pm
Edited on Feb 28 at 03:06 pm
Before we start prying up cobblestones, let's vote a couple more times and get our guys into defunding and let these activist judiciary retire ( they have to be older than Grace Slick ) or wield their starpower against the Constitution.
Although it would be quite a show in the Ninth.
Jan '11
Re: ObamaCare and the Thought Police
The road that this law leads us is revolting on all levels. And we haven't even considered the idea that the EPA may at some point succeed in classifying CO2 as a pollutant, making each and every person a walking smokestack. Forget about Let's Move, that's going to sink Manhattan. We're going to have to ration our food to keep our blood pressures within acceptable parameters.
And the tragedy is that under this interpretation, there is no way to amend the Commerce Clause to prevent the insane from abusing it, without destroying it. How can you separate commerce from not-commerce, when commerce is both commerce and not-commerce? (O_o)
May '10
Re: ObamaCare and the Thought Police
Seems like Judge Kessler's own level of "mental activity" is about on par with a bag of hammers.
That she wields such power over people's lives with her ideological theories is truly frightening. Is hers a lifetime appointment? Gulp.
Oct '10
Re: ObamaCare and the Thought Police
Serious question: why not abolish the commerce clause? What positive good does it actually provide? My understanding is that the goal was to avoid protectionism among the states. a) do we still have that concern, and b) is it a legitimate one (suppose the states engaged in protectionism against each other; so what?) and c) is it the proper purview of the US Constitution to deal with it if so?
Jan '11
Re: ObamaCare and the Thought Police
Paul, I never really thought about that question very seriously. But now that you bring it up, the only things that I can think of right now (not related to price controls), are FAA and FDA that would be affected; but they might both live under Necessary and Proper. And of course, PPACA would be out.
But to quickly respond to your questions,
a) I don't think so.
b) Yes.
c) Yes.
It seems to me a really fundamental function of a national government to have powers to regulate commerce within itself. But maybe I'm just using outdated thinking. What do you think?
Re: ObamaCare and the Thought Police
Paul: I wouldn't want to do away with the Commerce Clause. Properly construed, I think it is essential to the Founder's design. I would like to see an amendment that (1) clarifies that the commerce power is related to trade in goods and services across state lines, and (2) that there is no "negative commerce clause," i.e., courts can't strike down state laws just because they may interfere in some way with interstate commerce.