Mental Activity, i.e. Decision-Making, Falls within Congress’ Power?

There is a movie from the 1970’s called THE PAPER CHASE which all law students are practically required to see, or at least, so they were in my day. Here is the money quote. The toughest professor in the school is addressing the helpless gaggle of First Years.

Professor Kingsfield: You come in here with a skull full of mush and you leave thinking like a lawyer.

The line is striking, especially if delivered with impeccable sarcasm by the immortal John Houseman, but let us not overlook that this line is a promise. We, the public, whose lives are ruled by a legal system run by those who think like lawyers, depend for our liberties and even our lives on the promise that our legal system will not be in the hands of those whose skulls are filled with mush.

I was reminded of this quote today.

The United States District Court for the District of Columbia has held, as a matter of law, Congress has the power to regulate, through the Commerce Clause, any action or inaction, including mental activity or inactivity, including any decision or failure to decide by anyone in the jurisdiction of the United States, which may have an affect on reality.

The reason is that actions affect interstate commerce, including the action of deciding not to purchase a good or service in the amount and quality and under the conditions the state commands, and that mental activity, such as thought, affects actions, therefore mental activity falls under the Commerce Clause.

I kid you not.

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. See Thomas More Law Ctr., 720 F.Supp.2d at
893 (describing the “activity/inactivity distinction” as an issue
of first impression). 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.

The opinion goes on to hold that if Congress lays a tax on particular activity or inactivity in order to encourage or discourage it, as long as the legislative history does not call it a “tax”, then it is not a tax, and the legal precedent controlling the uses and abuses of the taxing power do not apply, and can by magically wishes away in a puff of fairydust.

My comment: would that Her Honor Gladys Kessler been in my Con Law class at William and Mary, and argued an argument like this before my formidable Con Law professor, she would have been verbally flayed alive.

There is no legal authority quoted for the proposition that activity under the Constitution is not distinct from inactivity, and the dismissively conclusory language ” to pretend otherwise is to ignore reality” is not the way judges are supposed to talk in opinions, any more than a geometer adducing a proof in Euclid is supposed to say, “Vertical Angles are equal! It’s obvious!”

Well, no matter how obvious, judicial opinion is supposed to give guidance to those who rely on the precedent set. Is any judge reading this opinion, trying to decide whether it controls the facts of the case under consideration, going to rely on the “to pretend otherwise is to ignore reality” rule of construction?

Is not doing something going to be the same as doing something, in the eyes of the law? Would it apply, for example, to Thomas Moore, who by not speaking the oath the King demanding held to the same penalty as if he had denied that oath? Is a nolo plea going to count as a guilty plea from now on?

No, let us send Her Honor back to first year Con Law, or maybe just Logic 101. Perhaps she will have Professor Kingsfield this term.

Professor Kingsfield: Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.

In case it was not clear–no normal and non-political case would provoke such blatant unlogic and disregard for proper legal precedent and formal legal reasoning. The case involves Obamacare, which has already been found unconstitutional by two judges (Republicans) and is only just now found constitutional by this judge (a Democrat). Draw your own conclusions.