Notes From Babel

Are Thoughts “Commerce”?

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In a wonderfully titled post over at Legal Insurrection, William Jacobson worries about the implications of this passage from Mead v. Holder, upholding the Obamacare mandate:

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 is dangerous reasoning.  There is a world of difference between choices and actions.  It is why, today anyway, there is still no such thing as thought-crime.  Thoughts are not legally actionable.  Intentions, until now, could not be prosecuted.  As Jacobson observes:

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.

As I’ve written before, Obamacare advocates seem far too comfortable with dismissing legal limits and relying solely on political limits.  Historically, however, this comfort only tends to last until legislation starts moving in the opposite direction. 


Written by Tim Kowal

February 27, 2011 at 12:14 pm

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