The PJ Tatler

A necessary musical interlude

Sing with Nena:

Die Gedanken sind Frei, wer kann sie erraten
die fliegen vorbei, wie nächtlichen Schatten
Kein Mensch kann sie Wissen, kein Jäger erschießen
es bleibet dabei: die Gedanken sind Frei!

(Freely: Our thoughts are free, who can even guess them? /They flutter on by, like shadows at midnight/ No man can know them, no hunter can shoot them/It remains, as we see, our thoughts are free!)

With today’s decision on the constitutionality of Obamacare, this song might become popular again.

As Prof Jacobson points out:

[The US Government has, under the commerce clause, the power even to regulate your thoughts]  seems to be the import of the ruling by federal Judge Gladys Kessler in upholding the Obamacare mandate in a suit brought by a group of private plaintiffs in Mead v. Holder (pg. 45, emphasis mine):

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.

Our thoughts are now actions.  There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.

Aaron Worthing at Patterico extends this argument:

How does she solve that problem, then?  By making her most frightening gambit.  She claimed that Congress has the right to regulate mental activity that has an economic effect.

Oh, you think I am kidding?  Well, dear reader, here’s a direct quote:

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.

You have to think that somewhere Rep. Dennis Kucinich is wrapping his head in tinfoil at the thought that Congress now has power to regulate “mental activity.”

And in the end you already know why this fails as logic.  Because by the same reasoning, I am engaged in the mental economic activity of not buying a GM car, so surely that activity can be regulated by forcing me to buy one.  To be blunt, I think this “mental activity” argument is so specious it harms her case.  I can almost hear Scalia mocking the concept as mercilessly as he did the Defenders of Wildlife in Lujan v. Defenders of Wildlife (“Respondents’ other theories are called, alas, the ‘animal nexus’ approach…”).  It literally fails the laugh test.