The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Judge Decides Federal Government Has Authority to Control ‘Mental Activity’

Posted on | February 23, 2011 | 15 Comments

Paging George Orwell!

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. . . . 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.

Professor William Jacobson reacts:

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.

The Commerce Clause has proven voracious enough to swallow the rest of the Constitution. Any scraps left over will be devoured by the Due Process and Equal Protection clauses of the 14th Amendment.


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