Hands off My Mental Activity
Author: Timothy Sandefur
National Review’s Rich Lowry has an excellent article about the decision by Washington, D.C., federal judge Gladys Kessler upholding the constitutionality of Obamacare:
The easy-to-grasp distinction between an activity and inactivity is one of the most powerful legal arguments of Obamacare’s opponents. But they hadn’t yet run up against a jurist as ingenious as Judge Kessler. She brushes the activity/inactivity distinction aside because not doing something is a choice and therefore “mental activity.”
Why hadn’t someone thought of that before? The sophists in Eric Holder’s Justice Department must be embarrassed that they didn’t dredge up this killer rejoinder themselves.
The fundamental question in the Obamacare case is whether there is any constraint on the ability of Congress to regulate economic activity. Do we still live in a system of dual sovereignty, split between the federal government and the states, as set out by the Constitution? Does the federal government only have certain enumerated powers? Is anything beyond its ambit? Judge Kessler’s argument is a ringing “no” on all three counts.
Judge Kessler, a liberal Clinton appointee, takes what has been a Commerce Clause case and practically makes it a matter for the First Amendment. It’s the most self-undermining defense of the constitutionality of a dubious statute since then–solicitor general Elena Kagan told the Supreme Court that under campaign-finance reform, the government could ban certain pamphlets.