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Does ObamaCare’s Constitutionality Rely on a Power to Regulate Americans’ Thoughts?

10:30 AM, Mar 5, 2011 • By JEFFREY H. ANDERSON
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Rich Lowry makes a good point about federal district court judge Gladys Kessler’s recent decision, which held that ObamaCare’s individual mandate is not unconstitutional.  (That’s the appropriate terminology; judges have no more authority to declare laws “constitutional” than juries have to declare someone “innocent.”)  Judge Kessler, a Clinton appointee, appears to support ObamaCare as a matter of policy. In her ruling, she repeatedly makes the inaccurate claim, contradicted by President Obama’s own Medicare chief actuary and the Congressional Budget Office, that ObamaCare would lower health costs. So it's not surprising she offers a curious defense of the law's constitutionality.  Judge Kessler seems to say that Congress has the constitutional power to regulate Americans’ thoughts.

Importantly, Kessler grants that ObamaCare raises constitutional questions that have never before been raised.  Moreover, she asserts that, in essence, the Obama administration is arguing that Congress has the constitutional power to regulate Americans’ mental as well as physical activities.  She explains, “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.”

She immediately adds, “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.”

So any thought that we give to undertaking an action, whether we ultimately undertake that action or not, constitutes an action in itself — it is “mental activity” — and it is therefore potentially subject to congressional regulation.  Imagine if, at the Constitutional Convention, a delegate had proposed to change the language in question from “Congress shall have Power…To regulate Commerce…among the several States,” to, “Congress shall have Power…To regulate Citizens’ mental and physical Activities in the Interest of promoting Commerce among the several States.”  Amazingly, that is how Judge Kessler, for all intents and purposes, apparently thinks the clause reads today.

Kessler’s case involved only six individual plaintiffs, a far cry from the 26 states who sued in the case in which Judge Roger Vinson recently declared ObamaCare unconstitutional, so her ruling understandably hasn’t gotten nearly as much attention as Vinson’s has.  Also, her ruling isn’t nearly as thorough.  Nevertheless, as Lowry writes, with friends like these….

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