Thought Police

Judge goes mental


Are your thoughts your own? Not if U.S. District Judge Gladys Kessler has anything to say about it. In February the D.C.-based judge ruled that Congress has the power to regulate "mental activity."

Kessler was rejecting a constitutional challenge to a provision of the Patient Protection and Affordable Care Act that requires everyone to purchase health insurance or pay a federal penalty. The five plaintiffs who brought the suit argued that all previous cases in which the Supreme Court had upheld legislation under the Commerce Clause involved regulation of a clearly identifiable activity. Not purchasing insurance, they argued, was not an activity, and therefore Congress could not punish it under its authority to "regulate commerce…among the several states." 

Kessler acknowledged that previous Commerce Clause cases "all involved physical activity," but she argued that not purchasing health insurance was a kind of activity too: "mental activity, i.e., decision-making."