Federal Judge Rules Congress Can Regulate “Mental Activity” Under Commerce Clause

A federal judge has upheld the national health care law, making it the fifth ruling on the merits of the legal challenges to the individual mandate.

The ruling by the Clinton appointee, U.S. District Court Judge Gladys Kessler of the District of Columbia continues the pattern of Democratic-appointed judges siding with the Obama administration and Republican judges siding with the plaintiffs in ruling the mandate unconstitutional. Kessler’s ruling comes in a case brought by individual plaintiffs, where as the two decisions striking down the mandate have come in cases brought by 27 states, based in Virginia and Florida.

Like the other decisions upholding the law, the logic of Kessler’s ruling demonstrates how broadly one has to interpret congressional powers to find the mandate constitutional. In something right out of Harrison Bergeron, Kessler notes that Washington has the authority to regulate “mental activity”:

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.

It is worth noting, however, that even Kessler concedes that “there is little judicial guidance” on this question.

Also, Kessler joined the other four judges in dismissing the Obama administration’s fallback argument that the mandate was justified under Congress’s taxing power, ruling “that Congress did not intend the mandatory payment…to act as a revenue-raising tax, but rather as a punitive measure.” Given that even those judges sympathetic to the Commerce Clause argument have rejected the taxation argument, I wonder if the administration will eventually abandon it as the case moves up the food chain.