Free Markets, Free People

Commerce clause idiocy– deciding not to act same as acting, thus can be regulated and action mandated (ObamaCare ruling)

Another federal judge has found for the Constitutionality of the individual mandate. But if ever you’ve wondered what tortured logic looks like (made in an effort to justify something that just doesn’t fit) then you’ll be amazed to read the following 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. [emphasis added]

William Jacobson boils it down for you:

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.

Excuse me while I sit down and ponder all of that for a moment. Anytime you make a choice not to act you are "acting".  Therefore, the court has now decided, any decision to not to act (related to commerce) is an act and you can be therefore required to do what the government says you must do.

Or, more succinctly, you have no real choice regardless of what you decide, so sayeth the court.

If I decide not to buy a car, I’m acting, and if the government wanted to require me to buy a car, under this ruling, it could.

Good lord.

That’s just absurd (but Government Motors will most likely be putting together a heck of a lobbying effort to carry this ruling out to its logical end).

Oh and borrowing again from Jacobson, a little reminder of where all this “legal thought” is supposedly grounded:

The Congress shall have power…. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;



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38 Responses to Commerce clause idiocy– deciding not to act same as acting, thus can be regulated and action mandated (ObamaCare ruling)

  • Thoughtcrime was the term, if I recall correctly.

  • My favorite part was where the judge said that the plaintiffs’ freedoms were not jeopardized because, hey, they can just pay the fine!  Riiiiiiight, and if there were a fine for having an abortion the women would not be losing their freedom because, hey, they can just pay the fine!  Bet that would go over well on the left…..

    • That “pay the fine” thing is totally disingenuous, and puts this judge in the “IDIOT” class.  What if you refuse to pay the fine…take that line of logic out a bit…

    • Judge Gladys Kessler definitely isn’t bucking for SCOTUS. At 73 yo, she should have already retired.
      Her logic reads like somebody who just wants to pass this “turkey” on the the next appellate level.

  • Folks, this is serious stuff.  If members of one branch of our government are using reasoning like this, they should be impeached and removed from office.

    If they are not and if the government uses reasoning like this to enforce its laws, we have no freedom and we must take matters into our own hands.

    Unfortunately we have no other choice.

  • Spiffy….There is little guidance on whether the government could take action under the Commerce Clause based on your thoughts, your “decisions”.
    Gee, now I wonder WHY THAT WOULD F*$@!@##$$ BE?
    And he built THIS crappy bridge, on top of the crappy foundation they laid when they declared the Commerce Clause should be interpreted to mean the government can regulate not only Commerce between states, but Commerce WITHIN states based on said clause (not even mentioning the other aspects of the current incarnation of the magic Clause).
    So what do you think, a crappy cover for the crappy bridge built on the crappy foundation?  What the hell is next based on the infinite power of the Commerce Clause?  I can hardly wait.

    • Just try applying this “decision” criteria to any of the abortion decisions and you can see in about 2 seconds that this stuff was tried before and didn’t fly.  Unfortunately, with some of the idiots on the Left side of the bench, you can expect at least 2 justices in the SCOTUS to see no problem with this.  Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented in a recent vaccines immunity case claiming that Congress didn’t give the drug companies immunity when the law plainly states that it does give them immunity, so we can expect these two to do whatever it takes to get the desired result.

    • Amended SHE.
      There I go again, demonstrating my misogynist, racist tendencies….I keep assuming most stupidity & bad behavior is perpetrated by white males.

  • “Excuse me while I sit down and ponder all of that for a moment.”

    Careful, there. You may be opening yourself up to legal action.

  • 64 pages to say, “Damned if you do and damned if you don’t.”

  • This guy must be a fan of RUSH “If you choose not to decide you still have made a choice”

    I heartily recommend this to you, and hope some of you guys will discuss it with me.

    For anyone of average intelligence and understanding “interstate commerce” is distinguished from “intrastate commerce”.  This distinction was a great big “wull, duh” that you will see for about 150 years in American Commerce Clause jurisprudence. Commerce “among the states” (INTERstate commerce) was the kind of commerce the Constitution permitted Congress to regulate.

    There were excellent reasons for that EXPRESS reservation, and for the power being granted to Congress in the first place.  Consider who was meeting at the Constitutional Congress, and what experience had brought them there.

  • Is it possible to not file a tax return, because when you don’t file, you are acting to file a non-return.
    If I don’t send any money, isn’t this the same as sending money that you can borrow from the Chinese ?

  • If I have contempt for a court, isn’t that contempt still there, even if I don’t express it ?  But the court’s failure to fine me for that contempt shows that I’m actually not doing something that would be fines if I was doing what I’m thinking.

  • The individual mandate as such should be repealed but it somehow overshadows other provisions which are good and which should clearly be kept in the bill such as the one saying that nobody can be denied health insurance based on pre-existing condition.

    • Dear, that means it CEASES to be insurance, and just becomes a clearing-house for money-in, money-out at HUGELY increased costs.
      Insurance HAS to consider risk.  What you suggest pushes risk to the infinite.

    • provisions which are good and which should clearly be kept in the bill such as the one saying that nobody can be denied health insurance based on pre-existing condition.

      So then, why buy insurance? Why not wait until you have that “condition”, and then buy it?

    • You need to learn what insurance is. If you google insurance there are a number of definitions and explanations.

  • How about a constitutional amendment, to repeal the commerce clause?

    • I’ve said repeatedly that the CC HAS to be clarified…by amendment is one way…to take it back to the meaning it has as written.

      So, INTERstate commerce was a VERY BIG reason there was a Constitutional Convention.  But, remember who was there…representatives from mini-nations…who were TRYING a new EXPERIMENT.  These people were not about to give away the farm to the untried experiment.  HELL NO!  They were very jealous of their own mini-nation’s rights.  There was no need…and certainly no intent by the Founders…for the newly formed Congress to have power to regulate INTRAstate commerce. That belonged to the individual states, and they WANTED it that way.  That is why they WROTE it that way.

      • SO tell me in all honesty, If we had roadblocks at every state and had to pay tariffs on all goods moving state to state, would that really be more burdensome than the huge spendthrift leviathan federal government we have now?

  • I believe we are at the point where either we amend the constitution or a significant number of the states choose to nullify these obviously unconstitutional laws.  Either way, the states need to start standing up for themselves in more than just rhetoric.

  • If I decide not to do something, no wait, I decided to do it.  Hold on, what if I just think about it for a while.  Does all that come into play?

  • You know, in Rome when they all went nuts, our “modern scientists” tell us it was because of lead in the Roman water pipes. Our future “modern scientists” will tell that generation it was because of diplomas in a fantasy world created by government controlled public education.

    Reality always wins.

    • It will be that we cared so much that we no longer cared.
      It’s like that line in “The Incredibles” … “Once everybody is a super, than nobody will be super”

    • My name is Floyd R. Turbo, I’m here to talk to you about milk Pastuerization, Water Flouridation and other communist plots.

  • Excuse me while I barf!
    Is THAT economic (in)activity?

    • Only if you decide whether or not to Barf.  Involuntary barfing is still not controlled by Congress under the Commerce Clause.

  • I thought the extension of Judge Kessler’s logic to the example of a man who lives this entire life in Japan, buys a “local” Japanese car would be subject to US taxes because Japan does commence with the US and “To regulate commerce with foreign nations” is in the US Constitution, was humorous to say the least.