#Commerce Clause, #Healthcare, #Law, #PPACA

The Regulation of Mental Activity is Covered Under ‘The Commerce Clause’

I’m having a rough time wrapping my mind around the implications in a recent court decision upholding the PPACA.1 In it, Judge Kessel writes:

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.1

First, how is choosing not to purchase something ‘economic activity?’ I choose not to purchase literally thousands of products annually by simply not purchasing them; under this court’s finding, the most absurd, but seemingly allowable, conclusion I must draw is that these decisions can be regulated by Congress under the commerce clause. One might argue that Congress would never go beyond health care, but what would stop them from writing legislation doing just that in the future? Wouldn’t this set a precedent for future legislation and case law?

Perhaps my logic is unsound, but a little explanation can go a long way here–I certainly need it.

What I can gather, based on some of the commentary I’ve read before and related to this decision, is that the market for health care is deemed a special case in this instance because everyone eventually requires the use of some health services. And now that insurance companies must accept all comers at the same price levels, regardless of risk, the costs would spiral out of control unless everyone purchases a plan to balance things out. Thus, choosing not to purchase health insurance would have a negative economic impact on everyone else, so it must be regulated.

But none of this makes a lick of sense. Government regulation created the conditions, not economic activity/inactivity. What stops them from regulating/mandating everything under this rationale?


  1. Mead v. Holder, Civil Action No. 10-950 (United States District Court for the District of Columbia 2011). http://legaltimes.typepad.com/files/mead_opinion.pdf. Accessed 2/23/2011.

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