Federal Judge Gladys Kessler, a Clinton appointee sitting on the US District Court for Washington DC, has thrown out a private lawsuit against the individual mandate in Obamacare Her reasoning was creative to say the least.
The key part of the ruling is quoted by Legal Insurrection:
“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.”
This import of this interpretation of the Commerce Clause cannot be exaggerated. Most people, including no doubt the Founders, have interpreted “engaging in commerce” as performing some sort of act, such as the buying and selling of goods and services. If this is done across state lines or with foreign countries, then it falls under the Commerce Clause.
Now the definition of “engaging in commerce” has been extended by Judge Kessler to include not “engaging in commerce.” The reasoning is that declining to buy or sell something has an effect of commerce just as much as buying or selling something.
If one declines to buy anything, including health insurance, a car, a house, or illegal drugs, one is “engaging in commerce” because by not buying these things, one is affecting the economy. Therefore we engage in commerce every moment of our lives, including when we sleep, by not engaging in commerce.
The implications of this ruling are profound indeed. If not doing something can be considered commerce, there is nothing that Congress cannot make us do or forbid us to do based on Judge Kessler’s broad interpretation of the Commerce Clause. We must buy health insurance today. Maybe tomorrow we must buy cars, or houses, or anything else the government deems necessary for people to own. Our ability to pay or our actual need will be beside the point. The government says we must and Judge Kessler says that there is nothing in the Constitution that says it can’t.
That, of course, is the path to tyranny. The reason that the United States has a Constitution is that it is required to limit what the government can do. But activist judges like Gladys Kessler have found a way around it, using semantic games to suggest that the wording of the Constitution means what she wants it to mean. It is the pernicious doctrine of the “living Constitution.” It says what we want it to say, which is the same thing as having no Constitution.
SiurceL All Your Thoughts Belong to Us, William Jacobson, Legal Insurection, February 23rd, 2011