Rich Lowry explains why the recent court decision by Judge Gladys Kessler has such wide-reaching implications:
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 aside the activity/inactivity distinction because not doing something is a choice and therefore “mental activity.”
Why hadn’t someone thought of this before? The sophists in Eric Holder’s Justice Department must be embarrassed that they didn’t themselves dredge up this killer rejoinder.
[. . .]
Kessler writes, “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.”
[. . .]
Under the Kessler principle, there’s no nonconduct that the federal government can’t reach. Every day, most Americans engage in nonactivities that affect interstate commerce. If you decide not to buy a house, not to buy a Chrysler or not to buy a Snuggie, you’ve impacted interstate conduct through affirmative mental actions. We’ve gone from the Constitution giving Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes,” to regulating on the basis of the mental activities of individuals deciding not to do something.
If this precedent stands, the Commerce clause has effectively swallowed the bill of rights: there will be no sphere of human activity that the US federal government can’t regulate.
H/T to David Harsanyi for the link.
Well, in order for thought-crime to exist, there must be thought-law.
Comment by Tom Kelley — March 5, 2011 @ 18:11