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Wednesday, February 23, 2011

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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  1. I just thought about how much better off I would be if I had some more money but I decided to watch TV instead of working harder.

    Does that mean I could get fined (or taxed) for that choice/action?

    According to Gladys I could. My 'choice' will affect Commerce in the U.S.

    I would guess that an MRI of Gladys' neural connections in the area where logic resides in her brain would look like an Escher drawing - mind twisting connections having no logical relation to each other.

  2. Look, it's like this...one of us has to be heavily sedated, wrapped up in an I-Love-Me jacket, stuffed in the rubber room and declared completely insane.

    Me or Judge Kessler. Either/or. If it turns out to be me that's lost contact with reality, please try to give me the Really Fun Pills, kthxbi.

  3. "Our thoughts are now actions."

    If I'm not mistaken, didn't Judge Kessler date Uri Geller for some time?

  4. buy stock in tin foil. this will really freak out that crowd.

    (and thanks for the link)

  5. If the Supremes vote the same way, it truly is the end of the land of the free and home of he brave. All that those who fight and died for, from the Founders on down, will have disappeared into an Orwellian and Wonderland insanity, and we shall all be slaves to a rapacious central government who can control literally EVERYTHING we do.

    My father was a Holocaust survivor, who never lost track of how easy it was to lose freedom. Who loved this country. My mother's parents were refugees from Russia, who understood what it was to live in a tyranny, of both the Czar's version and of the early SovUnion.

    They would be sickened beyond words at where this country is possibly heading.

  6. Oh, if there were any justice in the world, that crack about Frey & Kerr would definitely leave a mark. Wicked!

  7. A slave has to work or not work, think or not think, do or not do, for the economic good of the farm. When the farm does better, the slave does better, so all is fair in this setup. Each slave affects the other slaves, and to that extent, is subject to slavery. (sarc)

    This interpretation of the Commerce Clause is crazy. Our Constitution is a document of limitations. How can one, small clause be interpreted to allow all of the federal control that the document was intended to limit?

    George Orwell described reality. When the pigs gained power, they constructed "All farm animals are equal, but some are more equal than others". Logic is easily broken to serve power.

    Only a Constitutional Convention to specify some exact meanings will have a long-term effect on again limiting state power.

  8. What if I DON'T think about it before I don't do it?

    The second alternative title reminds me of an embroidered piece from the wife of my top producer which graced my office wall many years ago:

    "When I works, I works hard,
    When I sits, I sits loose,
    And when I thinks, I goes to sleep."

    Regulate that, Gladys!

  9. What is curious is that the left does not seem to consider the fact that at some point it will no longer be in office and the overweening power it deems appropriate to the government will be in the hands of the other side. Will leftists then in good nature agree that it's only fair for rightists to wield such power?

    Or is the assumption that the long march through the institutions has been so successful that it doesn't matter who holds office, the bureaucracy will enforce correctness?

  10. Let me guess - Gladys is a Clinton appointee. The power of a president to appoint judges to the federal bench has been often discussed, yet grossly underestimated over the years as to how our balance of powers can be corrupted.

    Such pretzel logic, ruling that thoughts are equal to actions, must not stand. If it does, America is over.

    I have not heard Mark Levin's take on this - I am sure his organization Landmark Legal is ready to take this one on. Praise the Lord for him and others like him who see the tyranny of the Leftist loons like Gladys.

    Now, we must find a way to ferret them out and remove them from their positions of power, under Constitutional methods (i.e. impeachment). Or else.

    OT but related - why are judges (especially federal ones) almost never impeached? Seems that this is a case where the person's ruling flies in the face of everything that our nation was and is founded upon, and would raise questions of the person's ability to uphold the Constitution and rationally interpret precedent.

  11. What in the world does "affirmative action" have to do with this case?

  12. "They are two sides of the same coin."

    Well, Judge Kessler almost understands the concept of binary logical choice, as in yes/no, on/off, 0/1, up/down, black/white, rational/blinkered tool of the Party...

    but not really. Somehow she comes up with activity/activity. Sigh. We're either screwed or screwed.

  13. "Making a choice is an affirmative action, whether one decides to do something or not do something."

    I propose a new lefty bumper sticker:

    "Take Action!! Do Nothing!!"

  14. Right, LukeHandCool. Existence is an activity, since one can choose not to jump off a tall building. Welcome to the future

    of Nineteen Eighty-Four.

  15. Wait a minute, maybe there is hope and "change"

    if only Judge Kessler would tell us what kind of coin has two sides of inactivity-- foreign currency, perhaps-- that Americans can now own and not be regulated by Congress, no matter how it gets flipped by the Democrats.

  16. Annotated version of this decision:

    "Heads, we win, tails, you lose."

    "Pure semantics are bad, but bad logic's pure."

    "Mind rays affect interstate commerce."

  17. Wow professor. I'm impressed. When I saw an "All Your Base" reference I expected it to be Kathleen's post. This made my day.

    For the uninformed, the title is from an internet meme about a very bad videogame translation.


  18. Sounds to me like the decision to not get health insurance is now a thought crime. George Orwell was a prophet!

  19. Alex Bensky said...

    What is curious is that the left does not seem to consider the fact that at some point it will no longer be in office and the overweening power it deems appropriate to the government will be in the hands of the other side. Will leftists then in good nature agree that it's only fair for rightists to wield such power?

    Nope. They figure they'll pull another Wisconsin, and - like spoiled children - bring the entire system to a halt until they get their way.

  20. Wow... On 2/1, I commented elsewhere:

    "If you believe that the health care mandate is constitutional, and is one of the enumerated powers implied by the commerce clause, then here's a logical extension of that premise: people's thoughts dictate their purchasing decisions. People's purchasing decisions will affect interstate commerce. Therefore, under the commerce clause, [congress] has the enumerated power to regulate people's thoughts. I predict that in a generation, this will be known as the 'Sotomayor interpretation' of the commerce clause."

    I was trying to highlight what a slippery slope liberal interpretation of the commerce clause is. I never thought we'd be so far down that slope, so fast.

  21. So, everyone, how's it feel to wake up and find yourself in a totalitarian dictatorship?

  22. Die Gedanken sind Frei, wer kann sie eratten?

    Ans: Judge Kessler

  23. More like a version of Minority Report.

    Thoughts lead to actions, therefore illegal actions are proceeded by illegal thoughts therefore the government is empowered to regulate and monitor thought(s).


    cogito ergo ego expendere

  24. Our thoughts are now actions.

    Well, I was hoping to make a "crimethink" remark, but I see Orwell has already been referenced. So instead, I'l just ask...

    If anything (or lack of anything) which might peripherally affect commerce can be regulated by Congress, does that mean things like boycotts and strikes can be made federal crimes (people not buying/ not going to work affects commerce)?

    Is Roe v. Wade effectively overturned, since aborting a baby means one less person who will be buying health insurance, which apparently impacts interstate commerce?

  25. I embrace diversity. I say the Pledge of Allegiance in my sleep. I will support the latest War on Terror, even if it's against Denmark.

    I'm a good American.

  26. It's one thing to make a law, it's another to try and enforce it.

    I dare 'em.

    On another note, when judicial activism becomes this farcical it's time to change the judicial system.

  27. How exactly is "making a choice" = "thoughts"? Yes making a choice, even a negative choice is still a choice and choices are definitively actions. There's nothing remotely controversial or even slightly obscure about this. It rests firmly on about 4000 years of philosophy.

    It sounds silly when you say it only because you;ve arbitrarily replaced one phrase with another that has nothing to do with it. Here let me demonstrate- you said "I think I'm going to be ill." So now you're a penguin! A Penguin! How ridiculous of you to claim to be a penguin!

    Of course you did no such thing, just as the judge didn't say *anything* at all about thoughts, only choices. You just chose to put words in her mouth, and yes that was an action on your part. One for which you are hopefully suitably embarrassed.

  28. @Charlie Martin

    Denke nicht. Sie wird gut. Aber dies ist eine Aktion. Versuchen Sie es erneut.

  29. I've been sitting here trying to decide whether to comment and reflecting on how my decision may affect commerce. Then I realized that according to the Heisenberg-Kessler principle, reflecting on how my decision may affect commerce is actually affecting commerce already. I think I'm sick too.
    [H/T too you for my new article]

  30. Thoughts being subject to criminal sanctions have been in place for quite some time. That is what 'hate crimes' are all about; enhanced sentencing based on the motives of the criminal action. Here we are not speaking of intent as an element of the crime which is long established in common law but the motives of the criminal as a factor in sentencing. Thought was criminalised. That was the first step onto the slippery slope. But now the rocks at the bottom of that slope are visible and we are headed straight for them. Commercial transactions are broadly speaking subject to taxation and regulation, whether rightly or wrongly. Now, we can no longer escape taxes or regulation by refraining from engaging in the transaction. There is no way to describe it other than tyranny.

  31. Too bad this came AFTER the Kleptocrats' losses in November. If they had known about their constitutional "power" to regulate thoughts and decisions, they could've "determined" that voting Kleptocrat was "good for commerce" and done away with all this commerce-draining election business once and for all. And don't believe for a minute Obama and the bunch of creeps in the 111th wouldn't have gone for it. And their little birds in the media wouldn't have chirped "how tweet it is!"

  32. Think about that. I personally have chosen not to do an infinite amount of activities. Now the infinite number things that I a have chosen not to do are subject to the commerce clause . . . . This logic breaks down too easliy.

    The animating sentence make just as much sense as it's opposite. Try this, "It is not pure semantics to argue that an individual who makes a choice to forgo health insurance is "not acting,” even given the serious economic and health-related consequences to every individual of that choice.

  33. I have become a big believer in ridicule over outrage. Kessler, having donned her big floppy shoes, big red nose, and orange wig, should be ridiculed at every opportunity. This post has been a good step in that direction.

    Probably, the best thing that could happen in the quest to have the mandate ruled unconstitutional is to have such ridiculous judicial reasoning being a reason for supporting the constitutionality of the mandate. Thank you, Judge Kessler, for both the reasoning and the entertainment.

  34. Being always board with my dull education, and not knowing anyone with an active mind, and the few times as a youth I did have an encounter, founding it strange, uncomfortable and unpleasant, I turned to the trades which gave me satisfaction and a living.

    But it is quiet, and you have a lot of time to yourself. So, I used to listen in the Boston area to Jerry Williams, Gene Burns, David Brudnoy and others on talk radio, long before Rush Limbaugh. I began to slowly read authors and books mentioned, until even the hardest book could be had such that I could get the gist of the writers thoughts. And, I liked it. As I exercised my mind, it got so it seemed to me, stronger. And what was once a bit of a annoying puzzle, became a pleasant walk in a forest of ideas and writers, to the point where I often say I could do solitary confinement if only I could choose my books.

    Anyhow, back to work. I do OK and am fairly paid for fair work, that swings with the economy, but even now, not ever having much, just gives me time to do long put off projects, and I just let the truck go a few more years, and lay off the spending and compared to working stiffs in economic history, suffer no real meaningful hurt even in this economy. I can paint, plumb, wire and swing a hammer from frame to finish and even do a timing belt on the VW. So, I get by.

    But, not quite me, but the people I hire, which used to be me when I started, well they're hurting. And you know what? I can't blame them for sliding, or choosing Welfare. Single Moms. Not married. Section 8. And...working under the table, for cash. The guys and gals don't get married because of the system. So they have these hit and miss ...families( ? ). And the kids I used to, know only what they grow up in, by and large, but I had a family, a real one. They don't.

    Short term, cash wise they are better. But it is a trap. Because their minds get molded by the system. In my case I was untouched and the system wasn't quite in its state of perfection it is now. They, however, are becoming soviets. Slavs. Serfs. Slaves in mind and habit.

    So, the government or lefties, or in the old days the Kings and their Priests have an interest in capturing the minds of their citizens.

    I suppose my two bits here is that mental though capture is occurring at both ends of the education/income spectrum.

    Government schools have long since no longer been about learning skill sets. They are about destroying intellect. They are about producing mental zombies. Mob production. Solidarity.

    They are response training centers, like where you take your dog so that it learns conditioned responses to verbal commands. You say, 'liberty', and the dog growls, and then you give them a bone. Happy dogs, happy masters.

    Doctors and Lawyers are dependent upon the state for their trade credentials. It is kind of now as they say about driving, " It's not a right, it's a privilege."

    Kind of really ugly all around, isn't it?

  35. So if I decide NOT to sell my shares, and the stock later rises, is that insider trading?

  36. We all saw this coming, of course, just not in the particulars of this judge's ruling. But the erosion of individual liberty in America is now a landslide.

    So we may as well amend the Constitution thus:

    Amendment 28 - The Power of Congress Unlimited:
    The Tenth Amendment to this Constitution is repealed.

    The Congress shall have the power to enact laws as it shall determine necessary. The powers enumerated in Article I, Section 8 of this Constitution shall not be construed or interpreted by any federal court as limiting the authority of the Congress.
    Amendment 29 - Sovereignty of the Federal Government Confirmed:
    The words, "and those in which a State shall be Party," of Article III, Section 2 of this Constitution, are deleted.

    The sovereign authority of the United States originates in the national government of the United States. Rights of the people and of the states are, without regard to articles of this Constitution or other amendments thereto, subject to definition and regulation by the Congress.

    No challenge to or suit contesting, as to compliance with this Constitution, an enactment by the Congress or executive order of the president may be heard in any federal court after the enactment has become law or the order is issued.

  37. "Making a choice is an affirmative action, whether one decides to do something or not do something."

    I think this has widespread implications for tax policy. I choose to elect a certain treatment of economic activity, but I don't actually do anything. By this ruling, I have done my duty.

  38. serious economic and health-related consequences

    I'm not a Constitutional scholar but I don't remember anything about government being able to force us to purchase items based on the economic and health-related consequences.

  39. Obamacare is a taking limited by the 5th Amendment (and for States by the 14th). It mandates that you use your property (money) for a government decreed purpose. If you can't control how your property is used, you aren't really the owner. Property rights are thus fundamental to freedom. Without them we are a communist country.
    "Free healthcare" is NOT an enumerated power of the federal government.
    This obsession with 'pre-existing condition' coverage is what is driving the mandate. Remove that and you restore insurance to its rightful purpose: protection BEFORE you have need for it. Otherwise, you waiting until you need it before buying knowing that you can get coverage at ANY time. Hence the mandate. Would you insure someone whose house is currently on fire? Of course not. Duh. If people have current or recent conditions, let them get a rider on their policy or pay more. If you pay enough, you can ALWAYS get insurance, despite the multiple lies of people who whine they "can't get it" when in reality they really can, they just don't want to personally pay for it. Enough of making the healthy pay for the sick! That way lies the folly of pre-existing insurance coverage, standing the entire purpose of INSURANCE against FUTURE loss on its head. That way lies the road to serfdom.
    Attack Obamacare on FIFTH Amendment rights as well as 10th Amendment ones.

  40. Under Communism there was a popular saying in Prague:

    Don't think.
    If you think don't say it.
    If you say it don't write it.
    If you write it don't sign it.
    If you sign it don't complain.

    I think *) that we are back to the beginning:

    Don't think.

    *) Ugh, did it again

  41. So, if I refuse an offer of overtime from my employer can I be taxed for wages I didn't earn for work I didn't do because my refusal to work results in a loss income I could buy goods with and a loss of tax income to the state and Feds?????

  42. Let me take this a step further with an analogy to the great play by Robert Bolt, "A Man for All Seasons." It is the story of Sir Thomas More, who was eventually executed by Henry VIII because, as a Catholic, More refused to TAKE AN ACTION: to take an oath to positively affirm the validity of Henry's marriage to Anne Boleyn. For HIS SILENCE in the matter, he was charged with high treason, found guilty, and then beheaded.

    In the play, at the end of the faux trial, More comments:

    "You have your desire of me. What you have hunted me for is not my actions, but the thoughts of my heart. It is a long road you have opened. For first men will disclaim their hearts and presently they will have no hearts. God help the people whose Statesmen walk your road."

  43. The spurious distinction between "economic" and "political" liberty continues to dissolve back into the nothingness from whence it came.

  44. “If you choose not to decide, you still have made a choice.” – N. Peart

  45. You watch, if Obamacare survives, not only will we get Death Panels, but we will each get individualized diet and exercise programs -- having the force of law.

  46. @ Jay:

    But if you choose not to decide, have you taken an "action"?

    And if so, is there any such thing as an "INaction"?

    And if not, then how can there be any definition of the concept "action" that distinguishes it from anything else?

    And if we can't define or distinguish the concept of "action," does the term "action" have any meaning whatsoever?

    But if the term "action" has no meaning, can government regulate it?

    Just wondering . . . .

  47. IANAL, so I cannot assess the technicalities of this judge's decision. Nor am I a politician, so I cannot predict/cause its consequences.

    In passing, I note that it seems to me that her decision subjects her to the interstate commerce clause and regulations appertaining thereto. But really, I do not know lawyer-speak. The passing observation is that, by the terms of her decision, she subjects herself as judge to herself as citizen/voter via the commerce clause and its regulatory superstructure. Not sure what that entails, but it's observable.

    However, I am a theologian and this lady's decision (I see people as persons, not in their roles in life) is a delicious irony for me. She has illustrated, apparently (IANAL), the truism that, taken indefinitely, and without attenuation, any effort in any direction reveals the unity of being and the oneness of substance.

    That's a fancy way of saying "Dust to dust, ... ."

    Thought, word and deed can be distinguished but not separated. If they could be separated, penal authority (expressed as law) could not exist and penal activity (expressed as regulation) would be unthinkable. Thought, word and deed unite in will, which partakes of ego and more.

    Life/existence roots in unity or ceases.

    This lady's decision arose from her thoughts regarding the full spectrum of life (which includes law, politics and more), whether she knows it or not (i.e., either her thought or life). Those thoughts, by the terms of her decision, are subject to the commerce clause and regulation, meaning, they belong to more than her and are subject to more than her will.

    She is in union with the system in which she operates, affecting it and being affected by it as a dialectic. There is no she separated from that system. (That sentence looks like it contains a typo or two but does not). But there is system, there is existence, beyond hers. Her individuality will cease in time but her life will not.

    The irony, and it is delicious, for me, in my non-lawyer's reading of this situation, is that a lady acting as a judge, no doubt intent (thoughts, words, deeds and will) on using her position to support a political cause, among others, that alienates (separates) many from a calm and happy life, employs the reality of ontological unity to do that.

    What she really has done is expose as rubbish the division of people into left and right, mine and yours, us and them. There is the true tyranny. The judge has shown that taking even that ultimate tyranny to its back end brings one to the realization of unity. Thus the flurry of raised eyebrows and firestorm of derision and fear that greet her decision. Man's gut feeling is of his unity with the oneness of life. Even demonic creatures are compelled, against their wishes, by the structure that unity, which they cannot escape, to affirm it.

    Eadem Mutata Resurgo / Man transcends even the unity of life.

    Probably all that above sounds like gobbledygook or worse. I neither affirm nor deny that it is.

  48. 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.

  49. 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!

  50. 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

  51. 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 ...

  52. 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.

  53. I think the discussion about "choosing not to" purchase health insurance misses the ultimate point.
    The problem is, that there are infinite possible economic choices that I never make, because they do not occur to me at all.

    But, this decision declares: If the federal government (not me) decides that I must make a choice about X, then the mere fact of that decision makes that choice fall under the commerce and N&P clauses, and therefore I must comply with the federal government regarding the choice about X.

    It is the exact constitutional equivalent of a parent's "argument" - Because I Said So!

    Personally, I already had my canonical 2 parents, and that was enough.