From John Fund at the WSJ's Political Diary.
Two federal judges have ruled that Congress cannot, under the Commerce Clause, demand that citizens buy a consumer product from a private company. But another, U.S. District Court Judge Gladys Kessler, has just joined two other federal judges in upholding ObamaCare. Her logic in doing so is, shall we say, creative.
According to Judge Kessler, Congress has the power not only to regulate "economic activity" but also "mental activity." "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," she wrote. "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."
This is breathtaking legal reasoning: Anyone's thoughts are actually actions that can be dictated by the federal government. "By the same reasoning, I am engaged in the mental economic activity of not buying a GM car, so surely that activity can be regulated by forcing me to buy one," says legal analyst Aaron Worthing. "To be blunt, I think this 'mental activity' argument is so specious it harms her case." . . .
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The "mental activity" standard for what the Federal Government can regulate
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