Obamacare

Don't Think Of a Health Insurance Mandate? U.S. District Judge Rules that Congress Can Regulate "Mental Activity."

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A precursor to Mortal Kombat?

Is it time to bring on the federal thought regulators? Your "mental activity" activity may be subject to congressional regulatory authority, according to a decision released yesterday by a U.S. District Judge in Washington, D.C.

With yesterday's decision, Judge Gladys Kessler became the third judge to rule that the individual mandate to purchase health insurance built into last year's health care overhaul legislation is constitutional. Like Judge George Steeh, a District court judge who ruled in favor of the mandate last October, Kessler's ruling relies on the idea that Congress, under the the authority granted by the commerce clause to regulate "economic activity," can regulate your economic decisions, even if such a decision involves you making no changes in your behavior, or continuing to not take a particular action, or what most of us would probably describe as "doing nothing." According to Kessler, such decisions still constitute a form of activity—they're "mental activity"—and are therefore subject to congressional regulation if they have a substantial effect on some larger federal regulatory scheme. 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.

I have a feeling Professor X isn't going to like Kessler's ruling.

It's nice to see that Kessler at least recognizes that the activity/inactivity distinction is one for which there is little historical legal guidance. But the distinction between activity and inactivity is far from a semantic sideshow. As Georgetown law professor Randy Barnett argued in congressional testimony earlier this month, there's a significant difference between, say, Congress banning a list of activities—purchasing a specified amount of broccoli, for example, or buying a certain make and model of car—and requiring individuals to engage in those same activities. It is one thing to restrict certain behavior. It is another thing entirely to compel it. So it strikes me as highly debatable, at minimum, to argue that an individual who does not purchase health insurance is somehow engaged in "activity."

That's likely why Kessler chose to focus on economic decision making—or "mental activity." But that framework leads to serious potential problems.

Saying that "mental activity" is up for congressional grabs would seem to put federal legislators in the business of determining exactly what is going on in someone's mind—a plainly impossible task. Perhaps some individual is making a conscious decision to avoid purchasing health insurance. Perhaps that individual simply forgot, or for whatever reason never made up his or her mind one on the subject one way or another. Perhaps it simply never crossed the person's mind at all. No one besides the individual in question—and certainly no one in Congress—has any idea whether that individual has actually engaged in the supposed "mental activity" that Congress intends to regulate.

"Mental activity" may be a convenient way to justify the individual mandate under the Commerce Clause, but it sets a potentially dangerous precedent by giving Congress the authority to regulate what's going on in an individual's mind. To those considering this line of reasoning, I would simply say this: Please. Don't even think about it.

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  1. You know, according to the Kirkpatrick Doctrine, one of the big differences between authoritarian regimes and totalitarian regimes?

    The authoritarians just try to control what we do, but the totalitarian regimes actually try to control what we think!

    I’m just saying.

    1. I have seen courts say jaw-droppingly stupid things before, but claiming the government can regulate thought is light years beyond merely stupid.

      1. Maybe they’re just laying the groundwork for controlling the singularity.

      2. The U.S. government has been policing our thoughts since forever. What do you think the Comstock laws were all about? And why is a picture of a child completely innocent and legal if an adult-attracted person sees it, but child pornography if a pedophile sees it?

  2. Apparently, some judicial reasoning is still outside the limits of Congress’s power under the Commerce Clause.

    1. I’ve always wondered why posters bother to put a fake address

      1. So they can opt out of being bothered at home by the likes of Rather Stupid.

        1. Fish, can you demonstrate how to get assholes to stop bothering me on H&R?

          1. Narcissistic personality disorder

            U.S. National Library of Medicine
            National Institutes of Health
            National Center for Biotechnology Information
            U.S. National Library of Medicine
            National Institutes of Health

            Narcissistic personality disorder is a condition in which people have an inflated sense of self-importance and an extreme preoccupation with themselves.
            Causes, incidence, and risk factors

            The causes of this disorder are unknown. An overly sensitive personality and parenting problems may affect the development of this disorder.

            Symptoms

            A person with narcissistic personality disorder may:

            * React to criticism with rage, shame, or humiliation

            * Take advantage of other people to achieve his or her own goals

            * Have excessive feelings of self-importance

            * Exaggerate achievements and talents

            * Be preoccupied with fantasies of success, power, beauty, intelligence, or ideal love

            * Have unreasonable expectations of favorable treatment

            * Need constant attention and admiration

            * Disregard the feelings of others, and have little ability to feel empathy

            * Have obsessive self-interest

            * Pursue mainly selfish goals

            Link to my blog.

          2. You see that little link at the bottom of the article that says X comments, where X is a number?

            Don’t click it.

          3. Hey blather, you might consider not blathering so much, and not bothering the assholes on H&R.

            Happiness depends more on the inward disposition of mind than on outward circumstances. – Benjamin Franklin

            Q. What’s the difference between a moose and a Camaro? (you may substitute the vehicle of your choice)
            A. On a moose, the asshole is in the back.

            1. retard#1 fish
              retard#2 NPD|
              retard#3 cynical
              retard#4 I’m not fish – but
              sigh, you all failed a simple fucking IQ test but maybe one of you assholes can reread the comment and train your microbic brain

              1. retard…retard…retard….? What are you fucking 8 years old?

              2. You win! It appears you cleverly whupped a bunch of assholes with microbic brains! Well done! It is great to see you at your peak.

          4. Two suggestions:

            1) Stop emulating (channeling, dare I say!) – Tony, Edward, Shrike etc.

            2) Try the DailyKos government love in!

            I read and post here because I think for the most part those who comment on Reason.com make pretty good sense (You and your other personalities excluded of course) and would pass the “People I’d have a beer with” test.

            You won’t be “converting the heathens” here!

            1. Right. You’re muffling the acoustics in our echo chamber.

              1. I know. I mean I’m just here to be an annoying, stupid blogwhore and boys are sooo mean to me. Echo chamber! Censorship! Waa!

                1. addendum
                  retard#5 Axman

                  1. addendum
                    retard#5 D’oh

                    1. obviously I cannot count as well as the real rather…

                      should read:
                      retard#6 D’oh

                    2. It’s official-NRD

                    3. Again, I am in awe of your struggle as you continue to demonstrate mastery and prowess over retards!

                      “The most insignificant people are the most apt to sneer at others. They are safe from reprisals. And have no hope of rising in their own self esteem but by lowering their neighbors.”
                      – William Hazlitt 1778-1830

                    4. I love your clubhouse mentality-it’s al her fault! She’s a girl!

                    5. No really, for an insignificant helpless victimy girl like you, it is a feat worthy of the average housewife in a TV commercial. To have dug so deep as to connect with the strength, power, mental nimbleness, and wit you used to overcome retards. (All boy retards too!) Your daddy, and the rest of the sisterhood must be so proud of you.

                      No doubt this battle of wits will boost your self-esteem. I hope you will not be modest, and you will share it with the readers of your blog. Tell the world you have what it takes to mentally rout retards.

                      Girl, you are amazing! A retard-smiting Ninja (or would that be Ninjaess)! But rest now, you must be drained after all that retard-smiting.

                    6. It’s always so shocking to see the word retard used in print like this. It keeps me on my toes and reminds me how much work needs to be done to educate those who are so ignorant about the world of special needs.

                    7. Hannah, this word is used is in the context of this site. I clicked and understand your sincerity but Reason H&R is abundant in political incorrectness-don’t take things at face value. Good luck with your launch site.

                      Regards, Rather

                    8. But rather dear, it is one of your most favored words, and you certainly and intentionally uses it in the “old” insulting, unenlightened way.

                      Can you say hypocrite?

      2. “I’ve always wondered why posters bother to put a fake address.”

        As have I.

      3. I’ve always wondered why posters bother to put a fake address

        It’s just to fuck with you.

    2. Perhaps the federal government can regulate bad judicial thinking due to it’s negative impact on interstate commerce.

      They could empower the president with the right to appoint a “Justice Czar” ro review all the federal court decisions and fired the judges who make bad ones.

  3. So now interstate commerce includes, not just wheat that never leaves my property, but thoughts that never leave my head?

    1. Also: Thoughts you may not have actually had.

      1. Also: Thoughts you may not have actually had.

        So, using this logic, you are guilty of mental adultery whilst married to Megan, even though the thought may have not ever entered your mind?

        1. There are some women who are like that.

        2. George Carlin described the sin math for groping a girl on a date::
          “It was a sin to think about feeling up Mary. It was a sin to want to feel up Mary. It was a sin to plan to feel up Mary. It was a sin to take Mary somewhere to feel her up. It was a sin to convince Mary to let you feel her up, and it was a sin to actually feel her up. That’s six sins for one feel!”

        3. Dang, even YHWH didn’t go that far. I guess He was waiting for the proper court precedent.

          1. YHWH does ban one type of thought in the Big Ten: covetousness, which is most often derivative of envy.

            Of course, envy is the motivating principle of the entire Left, and it the entire agenda of the Left is based upon actualizing its covetousness.

      2. And all future thoughts.

      3. Ah, but according to some theories, it’s inevitable that at least one of your quantum counterparts in other nascent alternate universes did, in fact, have that thought.

        Therefore, whether that particular thought ever existed the specific universe which we perceive as “reality” is a distinction the Court finds to be of little significance.

      4. “Also: Thoughts you may not have actually had.”

        I can see how not thinking certain things might effect commerce.

      5. “Also: Thoughts you may not have actually had.”

        This court recognizes that not thinking a thought is, in fact, an activity. It is just semantics to say that never considering something is not an action. This court also does not recognize the irony involved in being confused about the definition of “semantics”.

        1. “This court recognizes that not thinking a thought is, in fact, an activity.”

          Next up — regulating dead people.

          1. If Thomas Jefferson isn’t rolling over in his grave, I object to activity he is engaged in by not doing so.

            1. Who would Congress tax? Would the Hemmings family also be obliged to pay the “penalty”?

  4. Between this and the hate crime laws, Thought Crimes can’t be too far off.

    1. They are both thought crimes already.

  5. Perhaps some individual is making a conscious decision to avoid purchasing health insurance. Perhaps that individual simply forgot, or for whatever reason never made up his or her mind one on the subject one way or another. Perhaps it simply never crossed the person’s mind at all.

    Never fear! The kind and benevolent IRS will be more than happy to remind such an unfortunate person.

    I said that the judges sympathetic to this legislation would do legal gymnastics to find this heap of legal trash constitutional. And this proves it.

    This is what the Obama and Sebilius have been waiting for. Onward implementation!

  6. Liberals are prepared to destroy even the notion of Constitutional limits to enforce this shitty law. Are there no absurdities that they have qualms about expressing?

    1. Let me get back to you on that.

    2. It’s hard to take either party seriously when they act like there’s no danger to massive expansions of government authority. Neither our health nor or security require Leviathan, thank you very much.

    3. They destroyed the 1st Amendment clause for freedom of religion with it, since there were people arguing that they do not seek medical treatment because of their religion. They are told to pay the fine. So, I guess Christian Scientists will be fined for being Christian Scientists.

    4. Duh! It’s like, over a hundred years old, and stuff.

      1. Thank you, Ezra.

  7. Wow. What the fuck?

  8. Also, on the Mental Combat cartridge… is the Dennis Quaid in Enemy Mine?

    1. I vote yes.

      1. I’m wondering why that carries copyrights of 2002 and 2003. Was Atari making 2600 cartridges last decade?

    2. I thought it looked like Patrick Swayze in Point Break until I looked up the poster art for Enemy Mine.

      1. As I get to looking at both, it is just a lift from the poster art.

        1. Holy shit, that’s blatant.

          1. Not in my book.

          2. Looks like the developer (a German) had someone design the cartridge art for him:
            http://www.quernhorst.de/atari/mk.html
            Probably didn’t even know about Enemy Mine.

  9. Hey Warty, name this tune:

    Next thing you know they’ll take my thoughts away…

    1. Mercy killings! Mercy killings!

  10. In my mind I paid my taxes already.

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

    I keep telling my boss that, but he keeps insisting that doing nothing is……doing nothing.
    I am glad I finally have the US FEDERAL JUDICIARY on my side to support my claim, that what to the uninitiated appears to be sheer langour, is in fact the fervent activity of…not doing something.

    1. Sounds like you got an ADA case on your hands.

      1. More of an EEOC case.

    2. If you were a metallurgist, you could say you were “room-temperature annealing.”

  12. Could we get a Supreme Court ruling on this. At some point I’m considering funding my expatriation with the 40% of my income that I send to Uncle Sam every quarter. Hooray for self-employment.

    1. Seriously. What is the status on this libertopia boat?

  13. I think, therefore I price-gouge.

  14. The government may as well just come out and announce ” We are your overlords. We own your every thought. You can do nothing without our permission. We are even bigger than Big Brother. This is not America. Stop pretending that you live in a free country. You do not. Obey.”

    1. The USG doesn’t have to make such announcement. The USG can pronounce its supreme authority to do anything it wants, whenever it wants, and its pubic-skool ejucated citizen-subjects will continue to recite their Pledge and proclaim proudly that they are proud of their sweet land of liberty.

    2. All your thoughts are belong to the U.S. government.

  15. 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.

    Neil Peart should have known those lyrics would not end well.

  16. Government = niggers

    1. Fuck off, dipshit.

    2. The biggest problem with nitwits like you, bert the ernie, is that somewhere there is a lurker who is going to pick your comment, out of all the comments here, and say “This is what libertarians think and post on their sites.”

      I can’t stop you from being and idiot, but please go fuck yourself in the ear.

  17. I always knew it would happen: the statists reaching the point where they just openly declare that the power of the state is without limit, and they don’t give a fuck what the Constitution says. But I long thought that it wouldn’t happen in my lifetime.

    But I think we’re getting close, and it may well happen before I die.

    1. And you know what Thomas Jefferson advised us to do if a state were ever to reach that point.

      1. screw another slave babe?

        1. Iven I can see you are a cunt.

    2. where is MNG to either defend or deny this dooshcanoe of a judge?

      1. I’m sure MNG sees nothing wrong with this decision based on his insane reading of the commerce clause.

  18. So to sum up the judge’s opinion, it’s “If you choose not to decide, you still have made a choice,” right?

    I know they’re card-carrying libertarians and all, but this is just further proof that no one should listen to Rush, ever.

    1. I think therefore I’m taxed.

  19. p.s. your hatred of the greatest power trio of ALL TIME disgusts me.

    1. Ricky: Helix was a wicked concert. Fuck, I sold a lot of dope at that concert. I mean, they had good lyrics like, “Gimme an R-O-C-K”, and the crowd yells “ROCK” really loud. Now that’s a fuckin’ concert!

      Bubbles: I’m not giving anyone a fuckin’ R!

      Ricky: Rush just don’t do stuff like that. They got these lyrics about how trees are talking to each other and how different sides of your brain works, or outerspace bullshit.

    2. I didn’t see anyone dissing Cream upthread.

      1. hey now! that’s offensive! No one gives me the Clap!

  20. Nice bio (from Wikipedia):

    Gladys Kessler (born January 22, 1938) is an American jurist who sits on the U.S. District Court for the District of Columbia. She was nominated to the court by President Bill Clinton, and confirmed in July 1994.

    After receiving her B.A. from Cornell University and LL.B. from Harvard Law School, she was hired by the National Labor Relations Board. She worked as a legislative assistant to U.S. Senator Harrison A. Williams (D?NJ), later convicted in the Abscam scandal, and subsequently for U.S. Congressman Jonathan B. Bingham (D?NY). Kessler worked for the New York City Board of Education, and then opened a public interest law firm.

    She must have taken time off from protesting in Wisconsin to issue this decision.

    1. But I thought only judges appointed by republican presidents put forth blatantly partisan judicial decisions.

      1. fish arent known for thinkin

        1. Neither are double assholes, “OO”.

        2. Does that mean I can opt out of Obamacare due to not having thoughts that Gladys thinks ought to be subject to regulation?

  21. 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.

    Well, she is correct that deciding not to act IS an act. However, the judge is missing the point entirely, as the so-called “commerce clause” would purportedly give Congress the power to regulate actual commerce (i.e. the exchange of goods), not ACTS. She is therefore EQUIVOCATING by exchanging the meaning of the two: “commerce” and “action.”

    If her decision were to prevail in the SCOTUS, it would mean Congress could then regulate whatever ACT a person may perform, including shitting, walking or drawing pictures, never mind if that is commerce or not.

    1. She’s just doing what progressives do when a sentence means something that they don’t like. They redefine one or more words in the sentence to change the overall meaning into something more to their liking.

      For example:

      To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

      If Commerce means “the exchange of goods” then this is a limited power that does not include the act of not exchanging goods.

      If Commerce can be redefined to mean “any action or inaction, thought, exchange or deed” then this gives this progressive judge’s precious government the power to do any damn thing that some fuckhead lawyer elected official can dream up.

      1. What you savages call “magic,” we call it modern progressive reasoning.

      2. BTW apologies to all you fuckheads out there. It wasn’t nice of me to compare you to lawyers, least of all lawyers in political office. Seriously, I’m really sorry.

    2. “drawing pictures”

      We’re cool with that.

    3. What she’s saying is that people’s not buying insurance has an effect on interstate commerce, compared to buying insurance, just as their buying insurance has such an effect compared to not doing so. But the add’l little bit is to characterize not buying insurance as “economic activity” because apparently what that really means is “economic decisions”; therefore Congress can regulate one’s not buying insurance as surely as they could regulate one’s buying insurance.

  22. Suderman, It it first line and the the second paragraph.

  23. If they are fining people who refuse to buy insurance because it is “detrimental to the economy”, then why don’t they fine people who refuse to work? I think people sucking up welfare is the larger issue!

    1. Well, apparently the judge is saying Congress could do that without a problem on the enumerated powers front, although that one probably runs into a problem on the 13th Amendment issue.

      1. Nah, just draft them all into military servitude service. They never had a problem with that. After all, it’s neither servitude nor involuntary according to past rulings of the Supreme Court.

  24. We are all commerce now.

  25. So…inactivity = commerce???

    Sweet sassy molassy! We must be engaged in tons of commerce with Cuba!

    1. I own the whole of South America! And the Moon!!!

  26. “Saying that “mental activity” is up for congressional grabs would seem to put federal legislators in the business of determining exactly what is going on in someone’s mind?a plainly impossible task.”

    Just because Kessler is an idiot doesn’t mean we have to be. Both mandating and banning a physical activity are forms of regulating that activity. Congress isn’t worried about whether someone made a deliberate decision not to buy or forgot to buy because it’s irrelevant; only the resulting act that is or is not taken is of importance to them.

  27. Perhaps the indiidual simply beleves that the premium rates are not justified by his actual risk of illness.

    Which would necessarily be the case if the individual is of below average risk for illness, and the insurer is not allowed to charge him less for it.

  28. LOL
    I randomly surfed into this article from a twitter link and had the mistaken idea that this was a rationalist or skeptical site from the name 🙂
    The tone of the article gave me pause but I knew I was in the wrong place when I started reading the comments. Nothing says “reason” like the fervent talk of politically minded web communities 🙂
    Not to say there is anything wrong with politics, just not my thing.

    Carry on.

  29. Saying that “mental activity” is up for congressional grabs would seem to put federal legislators in the business of determining exactly what is going on in someone’s mind?a plainly impossible task.

    Impossible? Many of them don’t seem to think so. Witness all the “hate crime” legislation that’s been passed in the last twenty years.

  30. With all due respect to Her Honor, you have got to be shitting us. This isn’t debate class, you know.

  31. Really, this whole trend in constitutional interpretation has gone beyond silly. As people will not restrain themselves from silliness, I am thinking we definitely need a constitutional amendment to further define and restrict the commerce clause.

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