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    All Your Thoughts Are Belong To U.S.

    All Your Thoughts Are Belong To U.S.

    That seems to be the import of the ruling by federal Judge Gladys Kessler in upholding the Obamacare mandate in a suit brought by a group of private plaintiffs in Mead v. Holder (pg. 45, emphasis mine):

    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. 

    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.

    Our thoughts are now actions.  Whoops, I already said that.  I just can’t get over it.  The following sentence has now become a justification for regulating decision-making even where the decision is just to do nothing:

    The Congress shall have power…. To regulate commerce with foreign Nations, and among the several States, and with the Indian tribes;

    I think I’m going to be ill.  Which of course, is now subject to regulations to be promulgated by the Secretary of Health and Human Services.

    More analysis by Aaron Worthing at Patterico, where Patrick Frey has decided to take a short break from blogging, which means he has decided not to engage in economic activity and thereby subjected himself to federal regulation.

    And even more analysis at Volokh Conspiracy, where Orin Kerr has decided not to take a break from blogging, and thereby subjected himself to federal regulation.

    Alternative post title:  “Damned if you do, damned if you don’t.”

    Another alternative post title:  “Sometimes I sits and thinks and sometimes I just sits. (Not anymore, get up, that’s an order.)”

    Update 2-24-2011 – Reader David e-mailed to point out that as I originally quoted the Commerce Clause, I neglected to put an initial capitalization on “States” which he believes has significance in the text.  The quote has been corrected.

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    sort of runic rhyme | February 24, 2011 at 2:28 pm

    Null-A is the fun stuff of sci-fi and philosophy class. But non-Aristotelian logic applied to law by which common people have to live is high-brow piracy that takes the common out of sense, leaving us no sense, nonsense, and impoverished.

    sort of runic rhyme | February 24, 2011 at 3:05 pm

    David R. Graham, i wrote my comment before seeing yours- mine was only a reaction to the everyday unworkability of no-opposite, no either/or metaphysics.

    Pointedly, Judge Kessler decries "pure semantics" as she argues like a semanticist, recognizing no irony in her contradictory action. Nor does she seem bothered by the contradiction inherent in her basically non-A decision (not doing something is activity) that she justifies by implicitly opposing semantics with (her badly reasoned, Party line) logic.

    What a mess!

    So suppose I choose not to make a choice? Is that an action too?

    Arguably, everything I do is a decision. I have decided not to eat broccoli today. I contemplated sending a $1000 check to President Obama, just because he's a nice guy, and I decided against it. I thought about turning myself into the police on trumped-up charges, just to see what jail is like, and I decided against that too.

    Are these choices that the government can penalize me for? Can the government force me to make these decisions the other way? Judge Kessler seems to think so.

    I don't know who this Judge Kessler is. But she seems clearly not to have thought through the ultimate consequences of her words. She seems to believe that the government has the right to require anything of anybody at any time.

    A reminder: it is not up to us to hope that our leaders will be honorable, and that they will never take undue advantage of us. Rather, it is up to THEM to behave honorably, because THEY work for US. To paraphrase a famous American president, their honorable behavior is ultimately the only thing standing between them and our pitchforks.

    Daniel in Brookline

    Our thoughts are now actions …

    You reap what you sow … You didn't say anything against outlawing porn because it didn't affect you … It was nothing more than making certain thoughts illegal … now it has come back to haunt you …

    This problem turns on the reality of what a decision is. (Reality = What Is.)

    The word decision means to cut away. Cognate with it are the words scissors, scission and secession. A decision is talked of as a cutting away because, while comprising resolve to go one way, it rejects an array of possibilities beckoning in other directions.

    The underlying metaphor of decision is movement through a definite quantity of time, space, substance and causation. Seen so, in rejecting these and these possible movements in favor of this or these (and ultimately only one) with this or these assets (ultimately relying on one in particular), every decision is effective in two directions simultaneously, one for and one against the direction actually taken.

    If government has authority (it has no rights, only authorities, all of them ultimately penal) over a direction taken, because that direction is integral with directions not taken, government also has authority over directions not taken. This reality may offend one's sense of self-determination, but it's intrinsic to one's having existence at all.

    The offense to nature embodied in this decision of this judge is not that it infringes privacy and autonomy, which are infringed by dint of one's coming "into this breathing world," but rather, that it confers heteronomous authority on fallible functionaries, into the bargain representing, as the saying goes, that as government bureaucrats they are inspired by sublime wisdom unavailable to them as private citizens.

    Every thought has commercial implications, and political, religious, moral implications as well. All of those implications justify governmental oversight.

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