Well, this is certainly a novel defense of Obamacare. Unfortunately for us, it was made by a federal judge and now has the binding power of law until a higher judge can strike it down for the codswallop it is.
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.
In other words, thinking is now an economic activity, which means that nothing is outside Congress’ power. Worse, this ruling means that the Commerce Clause is the only operative part of the Constitution.
Does any thinking person, and yes I fully realize I’m calling this judge unthinking, really believe that the Founders created a national government with unlimited power? That is really what Judge Kessler has written. By expanding “economic activity” to thinking about whether you will make a purchase or not, she has opened up every consideration that could ever be connected to any economic activity to government coercion.
That, folks, is antithetical to everything the Founders wrote about our Constitution and how they wished our national government to work. Even elementary school students know that the men who crafted the Constitution wanted it to look nothing like the all-controlling monarchy they had left.
What’s more, the decision ignores to everything we know about human thought and activity. Consider a hypothetical. Let’s say you’re thinking about buying a new laptop. According to Judge Bizzaro, that thought alone is enough to give the government the power to force you to buy whichever laptop it decides, regardless of your ultimate decision. In fact, your choice is utterly unimportant because your thought is all that is required to trigger unending, unlimited government coercion. Can’t afford a new laptop? Too bad! Want a particular model with a certain amount of memory and video horsepower to do some gaming? Tough cheese; you’ll take the one that can barely run Rogue without stuttering! Want it today? Ha! You wish!
But let’s keep running the metaphor as if we were in the real world. You decide that you want to buy a laptop but, for whatever reason, you don’t. Your decision lingers in the limbo between thought and action. Once in a while you think, “Yeah, I really do want that laptop and I’ll buy it…but maybe tomorrow when I’m not so busy.” And tomorrow comes, then another tomorrow, then another and a year passes and you still haven’t bought the laptop. In fact, you may never buy a new laptop because, in the interim, Apple released its shiny new line of iPads and you bought one of those instead. Human nature is such that we routinely take decisions upon which we never act. Judge Kessler ignores that and decrees every decision an action. If that makes sense to you, you’re thinking in far more dimensions than the rest of us.
Ostensibly, the only defense to Judge Thought Police’s decision is never to think about health care in any way, shape, or form. Yeah…good luck with that the first time you get a sniffle in the middle of the night and contemplate nipping down to the local drug store for a pack of cold medicine. At that point, the Thought Police will come to you in your bed and you’ll take whatever they sell you, like it or not. What? You thought there wouldn’t be a Thought Police? How else do you think the government is going to enforce the the new power Judge Kessler granted them? Don’t worry about the details. I’m sure they’ll keep the probes and truth-o-meters down to a minimum.
I can not for the life of me imagine that a higher court will let this decision stand. It’s so ridiculously illogical that it should get laughed out of court in about half a heartbeat. However, similarly silly laws like McCain/Feingold stuck around far longer than they should have and it’s entirely possible that several Supreme Court Judges will don their Partisan Robes and decide that Obamacare is more important than the Constitution or your right to choose. We’ll see.