Thingish Things

Cognitive Dissidents

Written By: William F. B. O'Reilly - Mar• 08•11

I’m no legal scholar. In fact, I’m no scholar at all. But last week’s court ruling by a Washington, D.C. federal judge strikes me as a tad Orwellian.

In her 64-page ruling on the constitutionality of Obamcare under the Constitution’s Commerce Clause — can the government force you to buy health insurance — Judge Gladys Kessler writes that Congress has the power to regulate the “mental activity” of U.S. citizens.

Here’s how Her Honor interprets the Commerce Clause:

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

You got that right: Judge Kessler asserts that refusing to buy something can be construed as a commercial action and therefore can be covered under the Commerce Clause.  Ergo, refusing to buy health insurance is unconstitutional under Obamacare.

I’ve always wanted to use the line “by what sophistry of reason?” uttered by Gregory Peck in McArthur — or was it The Omen? — and I don’t think I’ll ever have a better opportunity, so…

…By what sophistry of reason does Judge Kessler come up with that? It seems like a classic case of twisting logic long and far enough to arrive at a preordained conclusion.

The Judge assures us, though, that, while this “mental activity” ruling can force one to buy health insurance, it would not mandate someone to buy, say, an automobile, because the government is not proposing to purchase cars for all its citizens. But insurance.  You must buy that.

Is it vertigo, or is this slope feeling extraordinarily slippery?

Thankfully, there are actual legal scholars out there who think Judge Kessler has gone a little bit mental in her decision, too.  I’ll have to leave it up to them to get this ruling walked back. I’m going to spend the rest of my day choosing not to buy government bonds.


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  1. Me says:

    Don’t most states already require drivers to buy liability insurance?

    • Your Friend says:

      Yes. The entire argument that the commerce clause does not allow the government to force you to buy something is what is an act of sophistry. Any time you pay any fee that is required by the government, they are forcing you to buy something. So, really, taxes are against the commerce clause. (OMG, did I just post that on a right-leaning blog?)

      The true point of the commerce clause is to open up trade among the states and between foreign nations. When the government tries to regulate something in a resticitve way (see gun laws), the commerce clause is invoked against such regulations. By this standard, the only way the commerce clause should be invoked by the courts in the current health care debate is if it makes an effort to restrict the inter-state sale of health insurance. Even a casual reading of the law suggests that it does not. Cornell law has fine article on the commerce clause.

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