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


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.

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.