The likelihood that the Supreme Court will consider the constitutionality of health care nationalization, already quite high, has now gone to 100%. That’s because, whatever the court ultimately decides about Obamacare, the D.C. District Court’s ruling upholding the law will certainly be overturned.
For what has to be (doesn’t it?) the first time in American jurisprudence, Judge Gladys Kessler has asserted the government’s power to regulate mental activity. I am not making this up (p. 45):
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”. . . Making a choice is an affirmative action, whether one decides to do something or not do something.
Note that “mental activity” is her own phrase, not my paraphrase. She says “mental activity” is the same as doing things. Your thoughts can now be regulated under the Federal government’s interstate commerce power. Wow.
I don’t think we’re going to see the Democrats crow about this decision very much. These lower court decisions are mostly symbolic, and regulation of thought is symbolism they can do without.
(Via Patterico.)
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