ObamaCare ruling: Commerce Clause now reaches “mental activity”

posted at 4:12 pm on February 23, 2011 by Bruce McQuain

Another federal judge has found for the Constitutionality of the individual mandate. But if ever you’ve wondered what tortured logic looks like (made in an effort to justify something that just doesn’t fit) then you’ll be amazed to read the following from the ruling:

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. [emphasis added]

William Jacobson boils it down for you:

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.

Excuse me while I sit down and ponder all of that for a moment. Anytime you make a choice not to act you are "acting".  Therefore, the court has now decided, any decision to not to act (related to commerce) is an act and you can be therefore required to do what the government says you must do.

Or, more succinctly, you have no real choice regardless of what you decide, so sayeth the court.

If I decide not to buy a car, I’m acting, and if the government wanted to require me to buy a car, under this ruling, it could.

Good lord.

That’s just absurd (but Government Motors will most likely be putting together a heck of a lobbying effort to carry this ruling out to its logical end).

Oh and borrowing again from Jacobson, a little reminder of where all this “legal thought” is supposedly grounded:

The Congress shall have power…. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

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Scott H on February 23, 2011 at 7:00 PM

That makes sense because whether we wish for something or not probably affects interstate commerce somehow. :(

You know, if we live—or if we die—either way it affects interstate commerce. So based on that the government should be able to regulate whether or not we live or die.

FloatingRock on February 23, 2011 at 7:06 PM

Isn’t that off the 2012 album? And is it true that album was written about Ayn Rand’s books? I guess I could look it up myself…

NTWR on February 23, 2011 at 7:10 PM

FloatingRock: By the interpretation in this ruling, there’s no probably about it.

And you are right. It is the extreme end of the argument.

And while you can arguably say that living is not a ‘decision’, suicides show that death can easily be a ‘decision’. And therefore the federal government can regulate it.

Scott H on February 23, 2011 at 7:17 PM

Clearly the left is not touched by the ruling. There is nothing that amounts to ‘mental activity’ there.

Inanemergencydial on February 23, 2011 at 7:21 PM

I do not wish to live under a regime with logic as tortured as that.

FloatingRock on February 23, 2011 at 6:59 PM

The “logic” goes like this, put simply: “We will ALWAYS find constitutional justification and authority for whatEVER it is we want to do.”

ddrintn on February 23, 2011 at 7:22 PM

Proud Rino on February 23, 2011 at 6:31 PM

crr6 on February 23, 2011 at 6:36 PM

If these posts don’t give away the desire you two have for a certain outcome nothing else does. And the ironic part is that both of you continue to argue the rest of us only care about a desired outcome ourselves.

NotCoach on February 23, 2011 at 7:30 PM

I think that House Republicans should deem-and-pass that a walk-out occurred on the Democrats in the middle of the Obamacare debate and that therefor Obamacare is null and void as a quorum was never reach, after the fact.

Hey, it’s as legitimate as anything the Democrats are doing these days.

FloatingRock on February 23, 2011 at 8:07 PM

If this stands, then it’s time for a Constitutional Convention. It’s a risk but can we do worse?

slickwillie2001 on February 23, 2011 at 8:22 PM

It’s a risk but can we do worse?

slickwillie2001 on February 23, 2011 at 8:22 PM

I believe that we could do worse. If you’d like to see evidence of what I believe ‘worse’ would look like, please direct your attention to any other country in the entire world.

Proud Rino on February 23, 2011 at 8:25 PM

If these posts don’t give away the desire you two have for a certain outcome nothing else does. And the ironic part is that both of you continue to argue the rest of us only care about a desired outcome ourselves.

NotCoach on February 23, 2011 at 7:30 PM

FWIW I don’t actually like the PPACA that much. Reform was and is necessary, but there should have been 2 goals – 1) controlling costs and 2) getting more people covered.

I think the PPACA does a lot on the second front, not so much on the first.

That doesn’t make it unconstitutional though.

Proud Rino on February 23, 2011 at 8:27 PM

Proud Rino on February 23, 2011 at 6:31 PM
crr6 on February 23, 2011 at 6:36 PM
If these posts don’t give away the desire you two have for a certain outcome nothing else does. And the ironic part is that both of you continue to argue the rest of us only care about a desired outcome ourselves.
NotCoach on February 23, 2011 at 7:30 PM

Those two posts, particularly by ccr6, show a blatant disregard for law and the constitution and show they ONLY care about outcomes. All the quoting of past precedence and references to older decisions are just pretense.

oddjob1138 on February 23, 2011 at 8:49 PM

It’s a risk but can we do worse?
slickwillie2001 on February 23, 2011 at 8:22 PM
I believe that we could do worse. If you’d like to see evidence of what I believe ‘worse’ would look like, please direct your attention to any other country in the entire world.
Proud Rino on February 23, 2011 at 8:25 PM

You mean like mandating healthcare? That makes us worse and more like the rest of the world…

oddjob1138 on February 23, 2011 at 8:52 PM

Is there an equivalent of the EMTALA for food? If you don’t have enough money for food, is there a federal law forcing restaurants and grocery stores to provide it for you?

crr6 on February 23, 2011 at 6:14 PM

Actually this is a very interesting point…

Just for rhetorical sake, lets take a look at what food actually does to an individual.

First it provides nutrients that the body cannot, itself, manufacture. These have a necessary life sustaining characteristic that would classify food as a drug.

Second, beyond such things as simple proteins and carbohydrates, food also provides enzymes that your body cannot manufacture for itself. This is a characteristic of a drug, also.

Third, going beyond the enzymes are such things as vitamins and minerals in a form that can be absorbed by a body to sustain health. Something like Vitamin C, for example, requires sources outside the body as this cannot be manufactured within the body. There are many examples of this and demonstrates that for each and every vitamin and mineral that can be easily ingested for body health, that the conditions for food to be classified as a drug is met.

So would it be ok to do an EMTALA with food?

Require emergency rations to be stocked that meet minimal guidelines on proteins, fats, carbohydrateds, vitamins and minerals? By all definitions of drug activity, food meets the criteria and would be covered under any health care provisos for EMTALA.

This is not only not an unnatural extension of the health care debate, it gets to the core of the matter: food is a drug, there is no way in which it can be differentiated from a drug due to the bio-activity it allows and sustains. If you support EMTALA then you also support the emergency supply of food that meets all necessary guidelines on sustaining bodily health to ANYONE in need of it at any time from any supplier at huge overhead cost to that supplier who would have to keep mandated emergency supplies available for those in sudden need of a meal… and then figure out who pays for it afterwards.

This is not a reductio ad absurdum, but an examination of what food is, what it does and how the classification of it as being different from medication is a historical artifact more than an actual fact. More importantly you REQUIRE food so as to make other medications effective, thus without it medications have limited to no utility at all…

ajacksonian on February 23, 2011 at 9:02 PM

Those two posts, particularly by ccr6, show a blatant disregard for law and the constitution and show they ONLY care about outcomes.

oddjob1138 on February 23, 2011 at 8:49 PM

I’m not sure how you reached that conclusion.

crr6 on February 23, 2011 at 9:23 PM

crr6 – is there any activity which the government cannot regulate? And force you to take action against your wishes?

While you mull that over, based upon your earlier statements, the answer is no. In fact, they can regulate abortion too based upon that logic. The ycan regulate everything.

Any reading of the debates on the US Constitution no matter how tortured do not support your position here.

Time to get our guns I guess. I am afraid if they won’t listen to us we might have to take Mr. Jefferson’s words to task. For we do live in a tyranny. A benevolent dictatorship my ass.

Zomcon JEM on February 23, 2011 at 9:32 PM

Machiavelli and his best readers nearly destroyed the partisans who last decided to try to control “mental activity.” Since the “federal” government do not have God on their side, I expect them to fare far worse.

Kralizec on February 23, 2011 at 9:45 PM

but there should have been 2 goals – 1) controlling costs and 2) getting more people covered.

I think the PPACA does a lot on the second front, not so much on the first.

Ummm, it might be that the two goals are at cross-purposes.

That doesn’t make it unconstitutional though.

Proud Rino on February 23, 2011 at 8:27 PM

A Dem president and Dem Congress passing a law doesn’t make it constitutional, either.

ddrintn on February 23, 2011 at 9:55 PM

I’m not sure how you reached that conclusion.
crr6 on February 23, 2011 at 9:23 PM

Your “bad decision/good outcome” post and just about every post of yours on this subject over the past few months added in for flavor. You admit with the bad/good post that there are bad decisions and tortured logic used in our legal system (without even needing to bring up Dread Scott to boot!) yet are apparently more than willing to accept them because the outcome is to your liking. You are more partisan than legal purist by that statement.
My guess is this case fits in nicely with Roe and Brown in your brain. It only takes a cursory reading if the Constitution and the rest of the founding documents from that era to know that the healthcare mandate would be an abomination in the eyes of the founding fathers. And my guess is you couldn’t possibly care less.

oddjob1138 on February 23, 2011 at 10:34 PM

ROFLMAO ! A crack smoking judge. Whoever would have thunk that??

Wow what a mental defective this Bozo puppet is.

dogsoldier on February 23, 2011 at 10:43 PM

“Commerce” consist of activity (exchanging, buying and selling). “buying” “selling” etc are verbs – you know, “action words”. They are activities. Words have meanings. Stop playing dumb.

forest on February 23, 2011 at 4:50 PM

playing“? LOL Where has P.R. given you even the tiniest indication he has the ability to understand the meaning/significance of your point?

People like this completely and hopelessly idiotic judge who posit nonsense like inactivity is activity, nothing is something, and not making a choice is making a choice as truth are not left-brainers who arrive at their brilliantly insightful conclusions because they know how to operate logically in the first place.

Bizarro No. 1 on February 23, 2011 at 10:48 PM

So “regulate commerce among the states” actually means regulate “economic choices” of individuals. Got it!

Fighton03 on February 23, 2011 at 10:53 PM

You admit with the bad/good post that there are bad decisions and tortured logic used in our legal system (without even needing to bring up Dread Scott to boot!)

Er, yeah. It’s “Dred Scott,” by the way.

yet are apparently more than willing to accept them because the outcome is to your liking.

I think you’re misunderstanding my post, which is unsurprising considering you likely read all of my posts with the assumption that I’m arguing in bad faith and/or generally a bad person.

To clarify, I think the outcomes in those cases were “good” from a policy standpoint, but I also think the outcomes were “correct” from a legal standpoint. I simply think that the reasoning the Court’s used to reach those outcomes was problematic. I would have reached those same outcomes, but with different (and in my view, better) reasoning.

For example, I agree with the policy outcome in Roe (banning in abortion is bad) and the legal outcome (outright banning abortion is prohibited by the Constitution). But I disagree with the odd reasoning the Court used to reach that outcome. Rather than talking about “penumbras” and “emanations” from various Constitutional provisions, I simply would have held that an outright ban on abortion violates the DPC of the 14th amendment.

I hope that clears things up for you. I certainly wouldn’t support a decision which I believe to be legally incorrect in both its legal outcome and reasoning, simply because I agree with it on policy grounds.

It only takes a cursory reading if the Constitution and the rest of the founding documents from that era to know that the healthcare mandate would be an abomination in the eyes of the founding fathers.

Perhaps you would get that idea after a cursory reading. But if you take the time to read those documents thoroughly, I think you’d reach the opposite conclusion.

I don’t know if many of the Founders would have voted for the PPACA, but I really do believe that they would have thought it to be Constitutional.

And my guess is you couldn’t possibly care less.

oddjob1138 on February 23, 2011 at 10:34 PM

I actually suspect that you haven’t studied the matter as much as you act as if you have. You certainly haven’t indicated that you possess an advanced understanding of the issues we’re discussing here, and attempts to compensate by conclusory assertions and vague appeals to the Founding Fathers isn’t helping much. Simply claiming that “a cursory reading of the Constitution and the rest of the founding documents from that era to know that the healthcare mandate would be an abomination in the eyes of the founding fathers” doesn’t get you very far where I come from. Perhaps it does in your neck of the woods.

crr6 on February 23, 2011 at 10:54 PM

A penny for your thoughts? That’s commerce, eh?

onlineanalyst on February 23, 2011 at 11:31 PM

Proud twag and twag6 defending the damnable.

Must be another day…

Inanemergencydial on February 23, 2011 at 11:35 PM

Perhaps you would get that idea after a cursory reading. But if you take the time to read those documents thoroughly, I think you’d reach the opposite conclusion.

I don’t know if many of the Founders would have voted for the PPACA, but I really do believe that they would have thought it to be Constitutional.

crr6 on February 23, 2011 at 10:54 PM

I don’t think even Hamilton could have swallowed that kind of overreach. Certainly not Madison.

ddrintn on February 23, 2011 at 11:53 PM

Is Health Insurance actually “interstate commerce?”

shorebird on February 23, 2011 at 11:59 PM

Smart comments usually get tagged with “thread winner!”, but in your case, we need a new category:

“Dumbest comment winner!”

BierManVA on February 23, 2011 at 5:13 PM

Do you believe that it’s fair to grant that award to P.R. so quickly, considering that GrowFins, crr6, auridiculous, and bifidis are here and always ready, willing, and able to compete against him for the prize?

Bizarro No. 1 on February 24, 2011 at 12:14 AM

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.

Congress and the Thought Police have the power to regulate mental activity, and if a person forgets to buy health insurance due to mental deficiency, the ‘rats in Room 101 will cure him of doubleplusungood nonthink for a small fee tax judgepleaseword.

Steve Z on February 24, 2011 at 12:48 AM

What’s with the quasi-religious imagery?

zoyclem on February 24, 2011 at 7:29 AM

The purpose of the mandate is force people to pay for the coverage of others.

It has nothing to do with commerce, or anything else in the constitution.

darwin on February 24, 2011 at 8:04 AM

“Words mean whatever I want them to mean – nothing more and nothing less.”
Humpty Dumpty, “Through the looking glas”

tommyboy on February 24, 2011 at 8:17 AM

A ruling like this is just what the left needs to force “green energy” on people.

darwin on February 24, 2011 at 8:19 AM

Thus, according to this Judge there is no such thing as inaction.

tommyboy on February 24, 2011 at 8:23 AM

So we have thought crimes now? Lovely. Can I get my telescreen with a stainless steel finish?

bitsy on February 24, 2011 at 8:24 AM

Isn’t there a term for this?

Some author came up with it, it’s like, illegal thoughts, or, uh, like, oh yeah, thought crimes.

Yeah that’s it.

Thought crimes.

Akzed on February 24, 2011 at 8:49 AM

bitsy on February 24, 2011 at 8:24 AM

Honest, I hadn’t seen that! Great minds, and all…

Akzed on February 24, 2011 at 8:49 AM

Akzed on February 24, 2011 at 8:49 AM

The term fits so perfectly it’s downright creepy. It might be time to re-read the book. I thought the point it made was very important, but I always took the actual plot to be science fiction…

bitsy on February 24, 2011 at 8:57 AM

Does this mean if we think about purchasing health insurance that satisfies the mandate?

NoFanofLibs on February 24, 2011 at 9:39 AM

Yes, I know it’s Dred Scott. I plead iPhone auto-correct.

think you’re misunderstanding my post, which is unsurprising considering you likely read all of my posts with the assumption that I’m arguing in bad faith and/or generally a bad person.

To clarify, I think the outcomes in those cases were “good” from a policy standpoint, but I also think the outcomes were “correct” from a legal standpoint. I simply think that the reasoning the Court’s used to reach those outcomes was problematic. I would have reached those same outcomes, but with different (and in my view, better) reasoning.

For example, I agree with the policy outcome in Roe (banning in abortion is bad) and the legal outcome (outright banning abortion is prohibited by the Constitution). But I disagree with the odd reasoning the Court used to reach that outcome. Rather than talking about “penumbras” and “emanations” from various Constitutional provisions, I simply would have held that an outright ban on abortion violates the DPC of the 14th amendment.

I hope that clears things up for you. I certainly wouldn’t support a decision which I believe to be legally incorrect in both its legal outcome and reasoning, simply because I agree with it on policy grounds.

So your argument basically boils down to: “I have faith that the courts would agree with me.” Because without the courts actually making a decision you are free to make any argument you want and call it constitutional. Perhaps there was a reason they argued Roe vs Wade that way. You acting like there is a vacuum of arguments against applying the 14th and DPC to abortion doesn’t simply make it so. And without a SC decision your assumption is an exercise in faith. Or ego.

Perhaps you would get that idea after a cursory reading. But if you take the time to read those documents thoroughly, I think you’d reach the opposite conclusion.

I don’t know if many of the Founders would have voted for the PPACA, but I really do believe that they would have thought it to be Constitutional.

Nice straw man. It’s pretty obvious that the implication using the phrase ‘it only takes a cursory reading’ implies that if you read the whole of it you would also find the same conclusion. Nice try.

I actually suspect that you haven’t studied the matter as much as you act as if you have. You certainly haven’t indicated that you possess an advanced understanding of the issues we’re discussing here, and attempts to compensate by conclusory assertions and vague appeals to the Founding Fathers isn’t helping much. Simply claiming that “a cursory reading of the Constitution and the rest of the founding documents from that era to know that the healthcare mandate would be an abomination in the eyes of the founding fathers” doesn’t get you very far where I come from. Perhaps it does in your neck of the woods.

crr6 on February 23, 2011 at 10:54 PM

You would be wrong. I’ve read the Constitution, the Federalist Papers and many biographies on most of the founding fathers and I almost exclusively use my iPod app on my phone to listen to historical lectures on podcasts and iTunes U from Staford, Yale, Gilder Lehrman Institute and the like. I think I have like 6 or 8 songs on the thing. While I am a total amateur, I have more than a layman’s familiarity with this particular subject. Also, nice appeal to experience example there.

So tell me, which of the founding fathers would have found it constitutional? Jefferson who didn’t even want a judicial branch and feared judicial tyranny so much he wrote this in a letter:

BUT THE OPINION which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch. — Letter to Mrs. John Adams, Nov. 1804

Or did you have someone else in mind?

oddjob1138 on February 24, 2011 at 9:53 AM

I don’t know if many of the Founders would have voted for the PPACA, but I really do believe that they would have thought it to be Constitutional.

crr6 on February 23, 2011 at 10:54 PM

Fine. Produce anything they said or wrote that would support it.

darwin on February 24, 2011 at 9:59 AM

ajacksonian on February 23, 2011 at 9:02 PM

I realize you meant this well thought out series of thoughts to be a warning on how far govt will go to make us behave the way they want, regardless of the legality or Constitutionality of it, but you do realize that crr6 sees it as an instruction manual, right?

runawayyyy on February 24, 2011 at 10:18 AM

Making a choice is an affirmative action, whether one decides to do something or not do something.

It that were true, we would all be guilty of an infinite number of “affirmative actions” that we choose not to pursue. Just by existing, we would be judged as taking “affirmative action” that would be offensive and aggressive to someone, requiring adjudication. There is noting more antithetical to liberty and the concept that we own ourselves than that.

elfman on February 24, 2011 at 11:26 AM

Fine. Produce anything they said or wrote that would support it.

darwin on February 24, 2011 at 9:59 AM

Let me take a stab at that. Here’s one that the left has trotted out in the past and then made faulty arguments to make it seem like it supported their decision: “An Act for the Relief of Sick and Disabled Seamen” signed into law by John Adams. They make the same faulty argument with that law that the president has made many times comparing health insurance to auto insurance, which the Relief of Sick and Disabled Seamen is more akin to. Merely being alive didn’t require a sailor to pay the tax. They had the choice to become a sailor or not. Only when one decided to become a sailor did the tax go into effect. They were allowed to opt out without penalty… Buy not choosing to be a sailor. Let alone the fact that is was set forth as a payroll tax, not a mandate to force an individual to buy a private product.

I’m sure there’s other fallacious arguments that can twist the words and thoughts of the founders to mean whatever the person reading wishes. But they’ll never be anything other than fallacious.

Again, all it takes is a cursory read into the founders thoughts to see that they thought the Constitution was a document of limited and enumerated powers. Specifically not plenary.

Here’s an interesting take on the Interstate Commerce Clause, comparing it to the Indian Commerce Clause from the Boston University Law Review. It illustrates how over the years the Interstate Commerce Clause has been bastardized into it’s current all-powerful state. Great read…

http://128.197.26.34/law/central/jd/organizations/journals/bulr/volume87n2/documents/SPEEDv.2.pdf

What say you ccr6?

oddjob1138 on February 24, 2011 at 1:41 PM

“War is peace. Freedom is slavery. Ignorance is strength.”

~~ George Orwell (1984)

RedPepper on February 24, 2011 at 2:39 PM

I don’t know if many of the Founders would have voted for the PPACA, but I really do believe that they would have thought it to be Constitutional.

crr6 on February 23, 2011 at 10:54 PM

Fine. Produce anything they said or wrote that would support it.

darwin on February 24, 2011 at 9:59 AM

Why, the Commerce Clause, of course! ROFL

ddrintn on February 24, 2011 at 4:33 PM

Fine. Produce anything they said or wrote that would support it.

darwin on February 24, 2011 at 9:59 AM

Don’t bother, crr6. From darwin’s tone it’s obvious that anything short of a Bible verse or a direct admonition from Sarah Palin will be mocked and disregarded.

Dark-Star on February 24, 2011 at 8:58 PM

Don’t bother, crr6. From darwin’s tone it’s obvious that anything short of a Bible verse or a direct admonition from Sarah Palin will be mocked and disregarded.

Dark-Star on February 24, 2011 at 8:58 PM

I haven’t read through the entire last few comments, but I don’t think either the Bible or Palin came up until you had to toss out a straw man. Funny.

ddrintn on February 24, 2011 at 9:52 PM

^ Actually, what you did there is more “poisoning the well” than anything else.

ddrintn on February 24, 2011 at 9:54 PM

Don’t bother, crr6. From darwin’s tone it’s obvious that anything short of a Bible verse or a direct admonition from Sarah Palin will be mocked and disregarded.

Dark-Star on February 24, 2011 at 8:58 PM

While there are some religious types here, that’s hardly an accurate portrayal of Hot Air posters. But then, that’s probably all you have. Mocking people for their religion.

oddjob1138 on February 25, 2011 at 1:08 AM

If they’re going to enforce ObamaCare based on what I’m thinking then there’s no way in hell I’m going to comply with it. Go ahead and try to throw me in prison, Obama–you won’t have enough room for me and everyone else who isn’t going to play along.

R. Waher on February 25, 2011 at 9:08 PM

Welcome back George Orwell.

ColdWarrior57 on February 27, 2011 at 2:09 AM

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