Patterico's Pontifications

2/22/2011

Breaking: D.C. District Court Upholds Obamacare (Update: Full Analysis)

Filed under: General — Aaron Worthing @ 6:09 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Update:  Legal Insurrection links.  Professor Jacobson absolutely can’t get over the “mental activity” line and has a pretty funny line about Patrick.

—————

Of course ironically, D.C. is the only place in mainland America where the Federal Government actually has enough power that Obamacare might be constitutional, given that it is technically Federal Territory.  But that is not relevant to this case.  This case involves residents of North Carolina and Texas and possibly other states, so it is not about the Federal Government’s unique dominion over the District of Columbia.

I haven’t read it over yet, but I will soon and let you know what I think.  You can read it for yourself, here.

Update:  And here’s the analysis.

One thing that leapt out at me is that the judge has clearly read all of the different cases.  Vinson’s opinion figures fairly prominently both on the issue of taxation and issues that are less controversial, such as standing.

This case involves a number of individual plaintiffs, as opposed to any states or institutions.  To me, that creates a bit of a standing issue and ripeness issue.  The mandate doesn’t come in until 2014.  By then we might have repealed the law.  So how exactly is this case ripe?  How can we say that this injury is anything but speculative?  Bluntly, I think this kind of litigation should have waited until at least 2013.

By comparison with the state-based cases, standing was clearer.  They were already having to deal with budget cuts and other requirements under Obamacare, and that established a concrete and definite injury to remedy.  But, on the other hand, they could base their challenge to those other laws on the theory that the mandate is unconstitutional and cannot be severed.  It’s a bit “Rube Goldberg” but it works.

Weirdly, the judge decides the issue of tax authority last, and largely says that Judge Vinson was right on the taxation issue, pretty much adopting his argument wholesale.  You will recall that I blogged about his decision on taxation here. What is weird about that is by then the judge already decided to dismiss the complaint, meaning she already upheld it under the Commerce Clause.  So why bother?  But she would hardly be the first  judge to needlessly rule in the alternative.

The meat of the opinion is the Commerce Clause stuff.  The chief logical “move” in that section comes at page 35 when she says:

When considered together, as they must be, Wickard, Lopez, Morrison, and Gonzales establish three major lines of inquiry…. First, the Court must consider whether the decision not to purchase health insurance is an “economic” one, like the activities in Wickard and Gonzales, or a “non-economic” one like those in Lopez and Morrison.

Notice what she is doing there.  She is pretending that the Commerce Clause is about regulating economic decisions.  Which means apparently she cares if Laurence Tribe grants her his approval, because it is exactly what he said in his op-ed.  He tried to pretend the commerce power was about regulating decisions and not commerce.

But after a while she forgets her spin, writing, for instance:

These two cases establish that (1) the activity subject to regulation under the Commerce Clause must be economic in nature, (2) the link between the activity and interstate commerce must not be too attenuated, and (3) other activities may be upheld if they are an essential part of a larger regulatory scheme.

So once again she is talking about activities.

How does she solve that problem, then?  By making her most frightening gambit.  She claimed that Congress has the right to regulate mental activity that has an economic effect.

Oh, you think I am kidding?  Well, dear reader, here’s a direct quote:

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.

You have to think that somewhere Rep. Dennis Kucinich is wrapping his head in tinfoil at the thought that Congress now has power to regulate “mental activity.”

And in the end you already know why this fails as logic.  Because by the same reasoning, I am engaged in the mental economic activity of not buying a GM car, so surely that activity can be regulated by forcing me to buy one.  To be blunt, I think this “mental activity” argument is so specious it harms her case.  I can almost hear Scalia mocking the concept as mercilessly as he did the Defenders of Wildlife in Lujan v. Defenders of Wildlife (“Respondents’ other theories are called, alas, the ‘animal nexus’ approach…”).  It literally fails the laugh test.

She also deals with the Necessary and Proper Clause.  She believes the necessity merely has to be “in the air” to borrow an old legal cliche.  I rebutted that view, here.  It is not enough for it to be necessary, but that it be necessary to carry into execution the other powers of the constitution.  Mitigating the economic fallout from another part of the statute doesn’t count.

The only other interesting argument is the claim that the Religious Freedom Restoration Act claim.  Unlike the Liberty University case, which at least accidentally touched on the more serious issue how this obliterates the right to boycott, two of the plaintiffs here argue that they believe solely in looking to God for their care.  This is a tough argument to make, because for starters it makes no frickin’ sense as theology.  There, I said it. God gave us a brain, He wants us to use it.  It’s one thing to believe God will help you in a pinch or when medical science is failing.   But if you think that God will just save you from every problem, well, heck, why do you even eat?  I mean if God will magically cure any cancers, why not expect Him to fill your belly, too?  At least then you will know if you are wrong a little faster.

Of course a judge isn’t supposed to get into that kind of religious debate, but I can’t help but believe that the judge isn’t at least thinking that sort of thing, and with every bit of her being resisting the urge to roll her eyes.

But as for legal reasoning, the judge rightly asks how these men’s religious faiths are even burdened?  I mean it comes down to the belief that they will be forced to buy a product they will never use.  Well, that does stink, but I fail to see how this forces you to accept care in violation of your faith.

Anyway, there is no denying that this is a victory for the pro-Obamacare forces and Politico notes that this is another Democratic appointee upholding it.  But I suspect the holding on standing is a significant weak point and even if not, her “mental activity” line may have positively harmed her side of the argument.  And of course as the split decisions pile up the pressure on the Supreme Court to settle this matter increases.

Hopefully they will expedite review of all of these decisions and decide the cases this year.  Companies and states need to be able to plan.  This uncertainty needs to end.

[Posted and authored by Aaron Worthing.]

111 Responses to “Breaking: D.C. District Court Upholds Obamacare (Update: Full Analysis)”

  1. this idea that everyone is a part of the health care market so they have to bow down to the federal government like slavey slavey slaves is fairly repugnant I think

    happyfeet (ab5779)

  2. What does it take for the judges to rule against this monstrosity to issue an injunction, as opposed to the honor-based one they issued previously?

    JD (0d2ffc)

  3. It’s Gladys Kessler, might as well be Gladys Travis,
    ‘move along, these are not the droids you’re looking for’

    narciso (28df0c)

  4. updated with full analysis.

    She actually claims that mental activity is no different than physical activity.

    Aaron Worthing (73a7ea)

  5. 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.

    I’m trying to figure out which of these two sentences is more absurd.

    I’m thinking the latter. This judge is saying that if I do nothing at all. If I never get coverage because I will just pay the doctor when I need one, whenever that might be, I have made an affirmative action.

    This is strictly the opposite of what those words mean. It is an omission. It is a negative. It is not an affirmative commerce action.

    This is the most carefully attempted swindle I’ve seen a judge attempt in recent memory. If the government can regulate the lack of any action at all because a judge thinks that’s an action too, then the republic is gone.

    My gut reaction is that this is exactly what we needed Justice Kennedy to come across to push him to strike down Obamacare. It’s really highlighting just how seriously ridiculous commerce clause interpretations have become. It is utterly ad hoc. If we were to ask if someone’s not buying a gun or not voting is necessarily an affirmative action or a mental activity subject to commerce clause regulation, she would have ruled the opposite on this specific notion.

    Dustin (b54cdc)

  6. BTW, thanks for the analysis.

    Dustin (b54cdc)

  7. Great job, AW, although there’s a point where it feels like you’re analyzing John Nash’s scribblings

    narciso (28df0c)

  8. Hi Gladys I’m happyfeet nice to meet you. Physical activity is different from mental activity in several ways. They both have advantages and disadvantages but my favorite kind of activity is probably the physical kind. This is where I get to get up from my chair and go to the kitchen. Or sometimes I clean something that might be dirty. One time I cleaned a light fixture. That was several years ago. Mental activity is another kind of activity, which is easier to perform than physical activity but in some ways it can be harder. Mental activity involves thinking thoughts. The other day I thought, “Would it have killed any of the people in Inception to crack a smile?” As you can see mental activity can be harder than just cleaning something (except maybe light fixtures) cause of there’s no closure. It can be very troubling. There are other differences Gladys but those are the main ones.

    happyfeet (ab5779)

  9. It’s not mental activity. It’s a situation where it’s 99.9% sure that (s)he will use the healthcare system at some point in his/her life.

    Jim (ad29d8)

  10. Buy Libya bonds and short the US treasury notes and bonds. Libya bonds will prove to be more stable than US bonds before these next two years are done.

    Jim (ad29d8)

  11. Dustin

    yeah, pretty much what i thought. that portion of the opinion is so rotten it will harm the cause. a true phyrric victory.

    Aaron Worthing (73a7ea)

  12. btw, didn’t anyone think my kucinich reference was at least a little funny?

    Aaron Worthing (73a7ea)

  13. Dream on, Aaron. Are you buying several rounds of drinks for us when the US Supreme Court upholds all but the individual mandate?

    Jim (ad29d8)

  14. Yeah, the Kucinich jab was a valiant effort to cheer us up, but this is such an irritating take on personal freedom.

    Think of all the things you mentally acted on in affirmation today. Just the way I said that is so confused and backwards from what Gladys claims to be saying. So to rephrase in non-Orwellian, think of all the things you did not do today. Why would those things constitute activity? Why give the government such an infinite power?

    Dustin (b54cdc)

  15. Nice work, Aaron, although I differ from you on what she meant about “mental activity”. I don’t think she’s arguing that Congress was the right to regulate mental activity: I think she’s saying there is no such as an economic mental activity without some physical action linked to it–that all economic activity is physical activity, and Congress can regulate that physical activity.

    If I never get coverage because I will just pay the doctor when I need one, whenever that might be, I have made an affirmative action.

    But you would have made an affirmative action–you would have chosen to self-insure.

    Just to be clear, before anyone starts to think I’m supporting Obamacare–which I don’t–I’ll repeat what I’ve said in earlier threads–that, based on the Commerce Clause cases of the 20th century, Obamacare is constitutional, that this opinion is the correct one in terms of current law, and if SCOTUS is going to rule it unconstitutional, they will have overrule those precedents, at least by implication. I’m all for that, although I doubt it will happen.

    kishnevi (2b3e28)

  16. kish

    except that according to her “mental activity” includes sitting on your keister and not buying something.

    And i think i understand the spirit of your comments, but feel free to correct me.

    You don’t like the law.

    But it is constitutional under current precedents.

    And, by expressio unius, you seem to think it is unconstitutional as an original matter?

    I am not as certain about that last part.

    Aaron Worthing (73a7ea)

  17. somewhere Rep. Dennis Kucinich is re-wrapping his head in tinfoil

    – There. FTFY!

    Icy Texan (7cb5e1)

  18. But you would have made an affirmative action–you would have chosen to self-insure.

    Uh, no. You’re adding that into my hypo because a lot of people indeed do that.

    What if someone simply doesn’t make a choice on the matter. They, too, are self insured. I’m self insured against chupacabra ghosts too.

    Dustin (b54cdc)

  19. You don’t like the law.

    But it is constitutional under current precedents.

    And, by expressio unius, you seem to think it is unconstitutional as an original matter?

    I am not as certain about that last part.

    That’s pretty much my view. I think all those Commerce Clause cases should be overruled because they represent an enormous infringement on individual rights, and an ongoing justification for big government.

    kishnevi (2b3e28)

  20. Kishnevi, you didn’t choose not to sing the alphabet backwards at lunch today. To say that your not doing so was a mental activity is simply a lie.

    A lot of people do nothing with regard for health insurance. It’s not the government’s place to intrude on that on the basis that this was activity under some contrived definition, such as as assumption they are choosing to be self insured (which is true in a way for many people, and should remain their right, but the government must not be able to assert that all inactivities are choices of no).

    This goes to the very heart of the commerce clause problem. The federal government is supposed to be limited. Instead, it seeks unlimited control over any facet, and we see the most twisted definitions of ‘commerce’.

    Sure, under those twisted definitions, your not emptying your bank account into a lottery ticket machine tonight was a mental activity of tremendous financial consequence to you. But it gets everything backwards. And it does so in pursuit of infinite power. The commerce clause obviously doesn’t say that, and this court obviously doesn’t care what the commerce clause says, apart from a need to reverse engineer it into the conclusion that Obamacare is somehow constitutional.

    Dustin (b54cdc)

  21. I think all those Commerce Clause cases should be overruled because they represent an enormous infringement on individual rights, and an ongoing justification for big government.

    Simply said, but great point. Realistically, we can’t win this issue by appealing to Wickard -> Raich being overturned. But you’re right.

    Dustin (b54cdc)

  22. btw, just to be clear, the ‘lie’ I’m referring to in 18 is Gladys’s ruling, not anything Kishnevi has said. My difference with Kishnevi is that I think we shouldn’t assume anything about someone’s lack of doing something. Especially as a legal matter.

    Dustin (b54cdc)

  23. Can someone explain to this non-lawyer what the logic of her argument is in this line of thought:

    If you don’t buy insurance, you put off buying health care till later, thus you are burdening the system.

    I see this argument trotted out every time there’s a debate on the matter, but I don’t understand it. For example, I don’t have insurance right now. When I need to go to the doctor, I just pay him out of pocket. I may buy insurance later, or have it provided by an employer, but how does the judge or anyone else know when or if I’m going to do that?

    I guess what I’m saying is, is there actually any fact of the matter that has been determined on the likelihood of anyone not having insurance at any given time becoming a “burden” on the system later in life?

    I realize this is not a legal question – I just want to understand this argument, since the O-Care supporters seem to rely on it so much.

    Kappa (56014a)

  24. I haven’t read a word of your post Aaron — all you need to write was that the opinion was authored by Gladys Kessler. Anyone who knows anything about the law would have been able to stop right there and conclude the opinion is meaningless.

    shipwreckedcrew (436eab)

  25. Kappa, a lot of people insist that you are a freeloader because if you have a catastrophe you can’t afford, you will get treatment for it at the emergency room. This is not fair to you.

    In fact, you’ll probably be billed for anything an emergency room could do for you, and an emergency room wouldn’t conduct the full treatment regimen for something like cancer or HIV or whatever.

    There are some people who freeload emergency rooms, but that would still be the case under Obamacare. It’s just an attempt to demonize people who don’t want health insurance.

    And I think a further point needs to be added that our government has actually made it less likely for someone like you to be insured, by adding too many requirements to a policy. You should be able to get a policy that covers only the rare and extremely expensive problem, so you can continue self insuring for your normal medical needs. This insurance could be quite cheap.

    The problem is that there are people who wish to be our nannies and don’t want us to make choices they disagree with, and furthermore, think they are clever enough to swindle us. Truth is that insurance under their laws takes money from some people and transfers it to others. It’s a worse deal for healthy young men than it is for other groups, as one example.

    I should be able to profit from the fact I take care of my health with extremely limited insurance, or even taking the risk of not having any (which is actually a winning bet for most young men, though if I were their nanny I’d tell them to be more careful).

    Dustin (b54cdc)

  26. Dustin -

    thanks for the reply, and I agree. I just don’t see the logical leap they make from “not currently being insured” to “being a freeloader.” I MAY wind up in serious straits later, but that is not at all a certainty. In other words, from the fact that I do not currently have insurance it doesn’t seem to me to follow that I will be a freeloader.

    What I’m wondering is if people who make this claim have actual data behind their claim. Prima facie, I would expect the amount of (lets just use the invidious term for now) “freeloaders” would more or less match the amount of chronically uninsured (including those who fail to sign up for medicaid when they’re eligible), plus a small percentage of people who prudently go without insurance because they’re young and healthy and lack catastrophic care options, but suddenly suffer a catastrophe.

    That is to say, it seems to me that if we looked at actual “freeloading” we would get a pretty good picture of what’s wrong with out health care system, and it would show exactly why Obamacare is just the wrong prescription for it.

    That’s what I’m trying to get at with my question – because far too many people accept this “freeloader” argument off-the-bat, without there being anything by way of substantiation.

    Or am I off-base?

    Kappa (56014a)

  27. It would be interesting to see stats on that.

    I think it’s difficult to get to them because if you show up to an emergency room tomorrow, you’ll be billed. Maybe you will pay, and maybe you won’t.

    This study says that uninsured people use the emergency room less than the insured do (proportionally or otherwise).

    Of course, insured people place more demand (far more) on health services than uninsured people do. This is one of the huge problems with Obamacare. We’ll see a huge problem with health care supply running far short, as it already is short today under less demand.

    But again I’m not really answering your question. How likely is someone who is uninsured to use the emergency room and not pay their bill? I don’t know.

    Dustin (b54cdc)

  28. Anyway, those people saying the emergency rooms are full of uninsured freeloaders are lying. ~90% of the people in the ER have insurance. I wonder how many of the remaining percentage are illegal aliens, and how many of the remaining from that won’t pay their bill.

    Dustin (b54cdc)

  29. When the country falls into the depths of anarchy for centuries, with judges and lawyers cast into the abyss,
    scribes in the distant future will point to legal decisions such as this one as one of the stepping-stones to the people’s rejection of the Rule of Lawyers.

    AD-RtR/OS! (74ff93)

  30. Dustin -

    Thanks for the study and the reply.

    As far as I can see, all the judges who ruled in favor of O Care have relied heavily on the Freeloader Argument – it might be a good thing to bring up in oral argument if the argument is BS (as we suspect it is).

    One could ask, “Is it not the case that most of the demand for ER and other health care services comes from those with insurance? Could we not just as well conclude that INSURANCE is the problem?” Or else, as you noted, the current absolutely asinine system of insurance.

    But then again, we’re now kind of playing on their field. If we quibble over this, it seems like we’re conceding the commerce argument but disputing whether the “mental activity” (or whatever) has good or bad consequences on the whole. And if we seem to concede that, then we lose. The problem is that the kind of liberal jurisprudence that I’ve seen in these pro-O-Care decisions is intrinsically bound up with consequentialism.

    That is, they appear to say,

    “Given the Freeloader Effects, this is clearly a Commerce problem, THEREFORE the Clause HAS TO cover the mandate, and if we have to erase the distinction between activity and inactivity, or to create some concept of ‘mental activity,’ to do that, then it’s done.”

    That, I think, is why it feels to me like conceding the Freeloader Argument is conceding the Major Premise in their argument.

    But I’m still not clear on just how to phrase what I mean – perhaps you or someone else more astute legally than I am can tease out the core of my argument. I realize to a great extent some of the problems I’ve mentioned are problems in Commerce jurisprudence in general, going back to Wickard. But if we said this:

    “Grant arguendo that not buying insurance is an activity. Even in Wickard, the activity was regulable because it had significant indirect and compound effects in interstate commerce. In this case, however, the presumed activity has no significant interstate effects, and whatever adverse effects there are are largely a result of the perverse insurance system we have, which is only exacerbated by O-Care”…

    …Would that be ridiculous and counterproductive, from a legal standpoint? Should we (or the Justices on the Court) just stick to the basic Constitutional claim, and the activity/inactivity distinction, rather like Judge Vinson, and let them have the Freeloader Argument?

    Ok – I’ll leave it at that. I don’t want to hijack the thread. Thanks again, Dustin, for your helpful replies.

    Kappa (56014a)

  31. But if you think that God will just save you from every problem, well, heck, why do you even eat? I mean if God will magically cure any cancers, why not expect Him to fill your belly, too? At least then you will know if you are wrong a little faster.

    I have always wondered why, if Heaven was so awesome, people fight to stay alive.

    Michael Ejercito (64388b)

  32. One more thing -

    Ilya Somin wrote a scathing reply to the ruling:

    http://volokh.com/2011/02/23/the-dc-district-court-decision-upholding-the-constitutionality-of-the-individual-mandate/

    Everything he says makes sense to me. Why does it not convince people who buy the Freeloader Argument, or as he puts it, the “health care is special” argument? That’s what I don’t understand. Is it just because they have decided to support Obamacare, ruat caelum? I’d like to think Judge Kessler and the other’s weren’t thinking that way, but it’s really hard to conceive of an alternative explanation.

    Oh well. Somin’s post is good reading anyway.

    Kappa (56014a)

  33. I reckon some learned counsel should argue that a law which has already generated 900 WAIVERS from its enforcement is, indeed, RIPE 900 times over.

    Harry Bergeron (dd1f79)

  34. _______________________________________

    She is pretending that the Commerce Clause is about regulating economic decisions.

    When I observe liberals like Gladys Kessler, the foolish judge ruling on Obamacare today, I can’t help but stifle a guffaw at what makes a lot of such people tick. For example, there is a high percentage of Greek versions of Gladys Kesslers residing in Greece, meaning they think and vote like your usual suspects of the left throughout America—in places like New York, San Francisco, LA, Boston, Detroit, Oakland, etc.

    With that in mind, the following can be labeled as sort of analogous to the many groups and organizations who love Obama, who love the Democrat Party, who love government-run healthcare, yet who’ve requested that the current White House issue them waivers from ObamaCare, and who’ve (surprise, surprise!) received them:

    New York Times, 2-20-11:

    Antriana Molla, who runs The Three Little Pigs Cafe in Athens, denies that her establishment has violated any tax laws. Soon, however, [agents from the Financial and Economic Crime Unit] were asking customers to show their receipts — an indication that the trendy night spot was paying value-added taxes. But the agents were not satisfied. Armed with a new law devised to help Greece crack down on tax cheats, the agents shut the cafe for the next 48 hours because, they said, receipts were missing.

    Across the city, other restaurants and nightclubs were also being padlocked, their names showing up in the local newspapers, their front doors sealed for all to see.

    The highly visible campaign against cafes and night spots is only one of the many efforts Greek authorities have made over the past year to change what has long been a way of life in this country — rampant tax evasion. But so far, to little avail.

    …Various studies have estimated that Greece may be losing as much as $30 billion a year to tax evasion — an amount that would have gone a long way to solving its debt problems.

    Even the pursuit of the pool owners, who fail to register their pools for tax purposes, has not been easy. In the northern hills of Athens, where many of the city’s richest citizens live, only 324 homeowners admitted to having pools in 2009. But satellite photos showed more than 10,000.

    Mark (3e3a7c)

  35. That’s just a disturbingly shallow analysis from a Harvard and Cornell law grad, or whatever clerk she dragooned to write this thing. The appeals court is going to slap her with a ‘wet mackerel’, for wasting their time. Now Gonzalez, actually involved an activity that was already illegal apriori, Lopez would seem more on point, and it acts in contravention to this decision

    narciso (28df0c)


  36. Well, that does stink, but I fail to see how this forces you to accept care in violation of your faith.



    Ah, you’re kidding… right, Aaron?

    I think Jehovah’s Witnesses are lame-brained idiots, but that’s still a freedom-of-choice matter, and one in which Darwinian selection will take care of any problem all by itself.

    It seems really quite self-evident that, once you’ve allowed them to force “mental activity” on you, that accepting “reasonable and sensible care” is not far behind.

    =====================================================================================
    These $%^#$#&#&%% people are out to express their #$&%#&%#&#%^ diktat on EVERY ASPECT OF OUR LIVES.
    =====================================================================================

    Nothing less.

    You give them *any* point of control, then, as a government
    >>>>sooner or later they will take it<<<<.

    C’mon, giving the government a power over you and actually expecting all bureacrats to decline the exercise of it in perpetuity is living in total denial about The Sword of Damocles.

    And once the Sword has cut you — always on some utterly reasonable pretext that very first time** — some other bureaucrat will go, “Hey, me too! Why does HE have special privileges?”

    ==============
    ** Hey, why shouldn’t you accept this treatment… it isn’t costing you anything at all!

    IgotBupkis, President, United Anarchist Society (c9dcd8)


  37. Anyway, those people saying the emergency rooms are full of uninsured freeloaders are lying. ~90% of the people in the ER have insurance. I wonder how many of the remaining percentage are illegal aliens, and how many of the remaining from that won’t pay their bill.

    Look into stats in Alachua Cty, FL.

    They passed a half-cent sales tax that goes to pay the local ERs for that, along with funding for public health clinics. I’d suspect that figures there should tell you how much the Cty is paying the local ERs, which can be applied on a per-capita basis, and so forth.

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  38. Kappa, it’s because of their collectivist ideology. The conflate not being insured with being a burden on the system because they are ignoring the private sector altogether and pretending that both the “insurance” and the “system” are run by the state. Same reason they keep using the word “workers” when they mean unionized public-sector employees. They are not reasoning and arguing based on logic and facts, the way you are. Most of the arguments you are asking about are strictly emotional–they use Marxist rhetoric to pretend otherwise.

    Sarah Rolph (500af4)

  39. should be “They conflate…” sorry!

    Sarah Rolph (500af4)

  40. How can these affirmative action judges use write so much that means so little? Have to admire them in a sense, but it takes a lot of time and effort to wade through their word salads to justify their pre-conceived notions. Thanks for taking the time.

    kansas (1fc602)

  41. i will say that i think you guys are misunderstanding the freeloader problem a little.

    you are talking about present freeloaders, and that is a concern. but a much greater concern is the freeloader problem if we have rules against discrimination based on pre-existing conditions. Without the mandate, you will be able to game the system, not buying insurance. So its not so much about present freeloaders as the future freeloaders who normally would own insurance, but decide not to when this pre-existing rule comes into place.

    to be blunt, this law is absolutely idiotic without the mandate. it is “necessary” obviously. but it fails under the necessary and proper clause b/c it is not necessary to carry the laws into execution as the clause requires. but at the same time, because it is so vital to keeping the whole thing from destroying the insurance industry, you can’t sever it.

    kansas

    let’s not drag her race into it. to be blunt, she did a (mainly) competent job doing what bill clinton wanted her to do: uphold big government liberalism. its a bad decision. But its not stupid or incompetant, except in the sense that the mental activity line is so weak it hurts her entire side. i see no reason to think Bill Clinton, for instance, is now ruing the day he appointed her.

    Aaron Worthing (e7d72e)

  42. No, I don’t buy that, she’s of the generation, before affirmative action, really got underway,
    a staffer for Harrison Williams, as well as the very liberal congressman Jonathan Bingham, it’s almost predestined what her results would be.

    narciso (28df0c)

  43. Banning “mental activity” is abhorrent, but it will be interesting to see how some of the Christian right suddenly oppose thought crime, given Jesus and St. Paul’s take on such matters… Aaron’s urgings on medical care (and eating!) above are quite logical, yet extra-biblical. The crazy religious folks who don’t want health care honestly believe they are doing what the book says.

    If, as Scalia concurred in Gonzales v. Raich , Congress can ban medical marijuana in states based on the Commerce Clause, then they can probably use it for everything.

    On the bright side, apparently the Executive branch can simply not enforce laws, like Obama is doing with marijuana enforcement in California. Quite a contrast from Ashcroft sending Tommy Chong to the federal pen.

    So, if the law stays on the books, could a Republican Executive simply not enforce it? It seems unlikely, given the hoops that companies will have to jump through, creating a structure to support compliance (think Sarbanes-Oxley). But who knows.

    carlitos (01d172)

  44. She claimed that Congress has the right to regulate mental activity that has an economic effect.

    So when I decide not to pay my taxes (mental activity=100%, physical activity = 0%), Congress can’t regulate that? Of course they can. And they do.

    And while you ponder that truism, consider that when one decides to forego health insurance, they are not being passive, like the person who blows off paying their taxes. I am convinced by this reasoning…

    Such a choice is not simply a decision whether to consume a particular good or service, but ultimately a decision as to how health care services are to be paid and who pays for them.

    … and I have not heard a convincing counterargument. (Hint: ad homs won’t convince me either).

    She also deals with the Necessary and Proper Clause. She believes the necessity merely has to be “in the air” to borrow an old legal cliche. I rebutted that view, here.

    The difference being that she uses legal precedent, whereas you come up with some legal interpretation of “necessary and proper” that has no support in 200 years of case law.

    My money’s on her interpretation. Yes, even with Scalia.

    Kman (5576bf)

  45. Kmart is an imbecile. Conflating paying taxes and penalties for choosing to not purchase a product is just typical leftist claptrap.

    JD (7ef7d4)

  46. Let us pray to The Holy Flipping-Coin Of St. Anthony Of Scotus that this is reversed.

    Mitch (e40959)

  47. This case cannot get fast enough to SCOTUS. Time to shut these nattering nabobs of negativism down (h/t Spiro Agnew – a crook, but sometimes a funny one).

    Dmac (c50897)

  48. The only other interesting argument is the claim that the Religious Freedom Restoration Act claim. Unlike the Liberty University case, which at least accidentally touched on the more serious issue how this obliterates the right to boycott, two of the plaintiffs here argue that they believe solely in looking to God for their care. This is a tough argument to make, because for starters it makes no frickin’ sense as theology.

    Exodus 21:1-24:18 explicitly states that if a person is injured, the person who has injured him must arrange for a doctor to heal him. Not only does this give a doctor permission to heal a sick person, but it requires the sick person to go to a doctor unless miraculous events normally occur for him. One is not permitted to “rely solely on G0d” for healing. As a result, those who refuse to go to a doctor are usually committing a sin.

    There are some people who are on a spiritual level that allows them to rely on G0d, but most of us must rely of the “laws of nature” that G0d set up. After all, He is the One that allows the doctor to succeed or fail. Just as He requires us to take an airplane to fly or a boat to cross the ocean, He similarly sends the doctor to allow us to be healed.

    Sabba Hillel (dd522e)

  49. Seems you’d want cost-shifting to the rest of us. Like that uninsured Libertarian who doesn’t care to wear a seatbelt and ends up as chopped liver at the hospital — thanks to him, my rates go up.

    Judge Kessler: 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.

    Larry Reilly (0e1b2d)

  50. I chose to not buy a Chevrolet today. Mawy would allow the government to force me to do so. The whole “freeloader” argument advanced by idiots like Mawy is ridiculous.

    JD (7ef7d4)

  51. Just as He requires us to take an airplane to fly or a boat to cross the ocean, He similarly sends the doctor to allow us to be healed.

    Comment by Sabba Hillel — 2/23/2011 @ 7:54 am

    Interesting logic. The problem is when he requires you to take the airplane and crash it into a building.

    In other words, your interpretation of scripture is more correct than their interpretation, right?

    en.wikipedia.org/wiki/Special_pleading

    carlitos (01d172)

  52. Perhaps it fails the laugh test, but it certainly isn’t very funny. Judge Gladys Kessler’s — an appointee of President Clinton, in case you couldn’t guess — decision, if upheld, would give the Congress the power to regulate your economic decisions based upon the majority’s decision of what is proper; if the Congress were to decide that it was impacting health care costs, and thus the economy as a whole, if you didn’t eat your broccoli, the Congress could require you to purchase a minimum amount of broccoli every month. (Whether they could send the gendarmarie to your house to make sure you eat the broccoli is another matter, though our lovely First Lady would seem inclined to order that, too.)

    We had just better hope that no one on the Supreme Court croaks soon, because with reasoning like this, Judge Kessler has surely moved herself right to the top of President Obama’s appointment list!

    The Dana who thought fascism was supposed to come from the right! (3e4784)

  53. At 72, I would tend to doubt that Dana, but that’s the only saving grace, otherwise she would fit in fine, with Soto and Kagan

    narciso (28df0c)

  54. The crazy religious folks who don’t want health care honestly believe they are doing what the book says.

    That’s their right. It’s a real problem when we’re talking about a parent keeping a kid away from needed help, but otherwise, I’m happy to live in a society where people can do things like this. So they die a little earlier, but their own way, with no harm to anyone else, in a showing of devotion to what’s important to them. Crazy? I don’t think so. Just a choice.

    it will be interesting to see how some of the Christian right suddenly oppose thought crime, given Jesus and St. Paul’s take on such matters…

    I’m not sure I follow. I’m sure you have some example in mind, but is ir recent and widespread? you were complaining about broad brushes just a little while ago. I don’t think Christians or Conservatives are largely in favor of ‘thought crime’ laws today, but perhaps I’m just not clear on what you’re talking about. Jesus was not advocating for earthly criminal sanctions to people who think bad thoughts. That’s pretty much the opposite of his take on legalism.

    Dustin (b54cdc)

  55. you are talking about present freeloaders, and that is a concern. but a much greater concern is the freeloader problem if we have rules against discrimination based on pre-existing conditions.

    That is the core of the problem. If democrats ban the kind of insurance I want (by requiring pre existing condition coverage), they make it financially impossible for insurance companies to sell anything but this rigid all-encompassing insurance Dems think I should have. It’s really none of their damn business. And it’s wealth transfer.

    The truth is that I really don’t need much health care. Insurance for me really should be a high deductible policy with low rates, and government only ensuring I get what I contracted.

    Dustin (b54cdc)

  56. Kman

    > So when I decide not to pay my taxes (mental activity=100%, physical activity = 0%), Congress can’t regulate that? Of course they can. And they do.

    wow, that is actually incompetent as legal analysis.

    congress is specifically given the power to tax. they are not given the specific power to force you to buy crap. whatever arguments you can make for implying the power, the fact we can force you to pay taxes has no bearing on the subject.

    Or did you not know that the judge rejected the claim that it was a tax? which means once again you didn’t read the ruling or even my post on it.

    either way, you literally don’t know what you are talking about. so we will take the rest of your analysis as seriously as it deserves to be taken.

    Aaron Worthing (e7d72e)

  57. Sabba

    thanks for the assist on religious matters. but in the end, in theory, its not about whether their interpretation of the bible is correct. its about whether their interpretation amounts to a sincerely held belief, that is being interfered with by this law. the judge is logically correct. The courts try not to get in the business of determining the correct interpretation of a holy book.

    but like i said, i suspect the judge was influenced by a gut reaction of “give me a break.”

    Aaron Worthing (e7d72e)

  58. So when I decide not to pay my taxes (mental activity=100%, physical activity = 0%

    OK, first, Aaron’s totally right that you didn’t read the opinion if you’re still clinging to the tax issue but leaving that aside, how did you get taxes without some sort of activity (real activity that was active?). You got taxed without a job or buying property or making a trade? I suppose you could say this is the case if your rich uncle leaves you some money, but even then, he did real activity first.

    If you really can’t make the distinction…

    ok, let’s be honest, you don’t care. Aaron said A, you say Not A.

    Dustin (b54cdc)

  59. Well, at least Judge Kessler supported Judge Vinson’s decision in one way:

    In short, § 1501 establishes a requirement that, beginning in 2014, each individual obtain health care coverage or pay a monetary penalty. This individual mandate is a critical element in Congress’s comprehensive plan to reduce the spiraling health care costs that this country has experienced and is expected to experience in the future. Indeed, Congress specifically concluded that “[t]he requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold.” Thus, the individual mandate provision must be viewed not as a stand-alone reform, but as one piece of a larger package of reforms meant to revamp the national health care market by creating new procedures and institutions to reduce overall costs. Put differently, many of the reforms contained in the Affordable Care Act rely on the individual mandate–or, more specifically, the reduction in health insurance premiums that the mandate is intended to produce–to help support their own financial viability.

    The Dana who notices these things (3e4784)

  60. Or did you not know that the judge rejected the claim that it was a tax?

    I’M not making the claim that it is a tax, and please don’t respond to arguments I don’t make.

    I’m simply saying that Congress does indeed regulate inactivity. They do it all the time. So let’s not pretend that “regulating inactivity” is something novel here. The only novel thing is that it is being done under the Commerce Clause, which — tellingly — doesn’t have an “activity” requirement to begin with.

    Kman (5576bf)

  61. dustin

    come to think about it, i am being far too generous with kman. No, he is either incompetently ignorant of the fact that congress is given explicit power to force us to pay taxes, or he is literally just making up a stupid lie to deceive.

    The Dana who uses lots of descriptive terms in his nick…

    i don’t think a single court has denied that taking out the mandate would mean financial disaster.

    Aaron Worthing (e7d72e)

  62. Kman

    > I’M not making the claim that it is a tax,

    Then you are making an incompetant point. Literally that is so dumb that i am doubting your basic facilities as a lawyer.

    when congress requires you to pay taxes they are not “regulating” the decision not to pay. they are just requiring you to pay under threat of punishment, garnishment and the like.

    And even if the situations were analoguous, that cuts against you, you moron. Haven’t you ever heard of the principle of expressio unius? it means that if congress was granted the power in one context, then they were implicitly denied the power in all others. You should know that already, but i am seriously questioning whether you have gone prematurely senile right now.

    > and please don’t respond to arguments I don’t make.

    Well, i am so sorry for trying to find a way to understand your words so that you don’t come off as a complete incompetent in your chosen profession. don’t worry i won’t do it again.

    Aaron Worthing (e7d72e)

  63. Haven’t you ever heard of the principle of expressio unius?

    Yeah. You’re not quite stating the principle correctly. And in any event, Hamilton specifically rejected expressio unius as applied to constitutional interpretation (Federalist 83)

    Kman (5576bf)

  64. Kman

    First, notice you don’t even dispute my point that your prior analysis was actually incompetant.

    > Hamilton specifically rejected expressio unius as applied to constitutional interpretation

    and there is another incompetant piece of analysis. or would you like to plead dishonesty, here? hamilton didn’t say it was completely wrong, he said that you have to apply a little common sense to the matter.

    And likewise, i didn’t say it concluded the issue. i just said it “cuts against you.” your excellent reading comprehension is on display as usual.

    Aaron Worthing (e7d72e)

  65. I prefer expressio doppio to expressio unius. Preferably with a lemon peel.

    carlitos (01d172)

  66. First, notice you don’t even dispute my point that your prior analysis was actually incompetant.

    Told you. I ignore ad homs. Make a substantive criticism, rather than conclusive labeling, and I’m more inclined to respond.

    i just said it “cuts against you.”

    Yes, AW. If you apply a rule of construction which at best only works “implicitly”, and avoid application of common sense, then yes, it cuts against me.

    You leveled me with that one.

    Kman (5576bf)

  67. Told you. I ignore ad homs.

    It wasn’t an ad hom. He didn’t say you’re stupid, but that this is incompetent analysis because of the special provisions for taxation.

    Yeah, it leads to a conclusive label about your honesty or competence, but that’s not an ad hom. It’s just logic. You always respond to these proofs about you failed arguments by dismissing them as ad homs, stalker. For nine years. Jeez.

    You really have no idea what you’re talking about, and very plainly did not read the post or opinion. Why do you stalk Aaron if you don’t want to read his posts, anyway? How many times has this been proven? You have a mental illness, and while that could be seen as an ad hom, that’s not why your argument failed. It’s just why I hope you seek some help. Tell someone in your family that you’ve been stalking Aaron for 9 years online and need help.

    Dustin (b54cdc)

  68. Kman

    > I ignore ad homs.

    Pointing out that your argument is so bad as to be incompetant is not an ad hom.

    And that is incredibly hypocritical given how many times you have committed ad homs against me. i mean just in the last 24 hours alone…

    > You leveled me with that one.

    You moron, i never said that the argument “leveled” your argument. just that it harms your argument. is english not your first language?

    Aaron Worthing (e7d72e)

  69. Yeah, it leads to a conclusive label about your honesty or competence, but that’s not an ad hom. It’s just logic. You always respond to these proofs about you failed arguments by dismissing them as ad homs, stalker.

    Dustin, I gotta be honest: I really do enjoy your comments. Don’t ever change, man.

    Kman (5576bf)

  70. JD

    > What does it take for the judges to rule against this monstrosity to issue an injunction, as opposed to the honor-based one they issued previously?

    i truly believe that judge vinson will wait until they ignore his decision and then issue the injunction. And defending this case in D.C. doesn’t count. they are allowed to do that.

    Aaron Worthing (e7d72e)

  71. Nice try, Kman, but you’ve often really reacted like you’re extremely upset when I lay out your behavior.

    I think you’re being defensive to claim you’re laughing it off.

    Get help. Everyone has problems. Yours is that you’re stalking someone online for a decade. I recall how much you freaked out when I first said it because you claim you only did so for maybe eight years. You’re not really OK with this obsession, but you don’t know how to get well again. That’s why you need help, and I think it takes strength to admit you need some help.

    If you were to get well, it’s not like some other lefty wouldn’t come in here to criticize Aaron’s POVs. If no one did, the threads would be much less interesting (in fact, I think you suck a lot of oxygen away from more effective criticisms from the left). Just take a second and consider what you could have done with the last decade of your life had you not been obsessed with reflexively denying whatever Aaron says before you read it.

    Dustin (b54cdc)

  72. Nice try, Kman, but you’ve often really reacted like you’re extremely upset when I lay out your behavior.

    I’m not, Dustin. This is not my life. Like most people here, I have bigger and better things to get emotional about.

    Kman (5576bf)

  73. Kman

    > Like most people here, I have bigger and better things to get emotional about.

    Then go away and never come back.

    Aaron Worthing (e7d72e)

  74. I’d hate to know what it is that Kman is more obsessed over than Aaron.

    Anyway, thanks Kman for your repeated proclamations that you’re not really obsessed and emotional. You seem to use a combination of simple denial, minimization, and of course, projection, to deal with the incredibly uncomfortable reality that you’re a complete whackadoodle.

    Dustin (b54cdc)

  75. The analogy you want is not being forced to buy a car. A better one is being forced to buy hurricane or flood insurance.

    Should the Federal government force all those in Hurricane and flood zones to purchase this very expensive insurance. They haven’t in the past and the cost would be onerous to everyone in those zones.
    Those who choose to forego the insurance take the risk of having to pay a very expensive bill if hit by a flood or hurricane. Many choose to take the risk.

    I think in Kman’s world he’d be down with forcing people to do that. I don’t.

    Randy (ecc761)

  76. Seems you’d want cost-shifting to the rest of us. Like that uninsured Libertarian who doesn’t care to wear a seatbelt and ends up as chopped liver at the hospital — thanks to him, my rates go up.

    Judge Kessler: 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.

    Comment by Larry Reilly — 2/23/2011 @ 8:04 am

    Then you agree that welfare, medicaid, medicare,social security, farm and ethanol subsidies and civil servant unions all have to go as this is cost shifting to the rest of us who pay taxes.

    cubanbob (409ac2)

  77. Maybe Kman would agree that before anyone is eligible for welfare assistance they first have to be a college graduate and have five years working credits. This way not only can we substantially mitigate the freeloader issue but as he is of the opinion the congress can regulate every form of economic activity, mental or physical, surely he must believe that congress can mandate everyone to be and educated and credentialed lest they game the system.

    cubanbob (409ac2)

  78. Randy wrote:

    Should the Federal government force all those in Hurricane and flood zones to purchase this very expensive insurance. They haven’t in the past and the cost would be onerous to everyone in those zones.

    Those who choose to forego the insurance take the risk of having to pay a very expensive bill if hit by a flood or hurricane. Many choose to take the risk.

    Actually, the federal government does require you to buy flood insurance if you live within 1000 feet of tidal water, if you have an FHA or VA mortgage. If you don’t, then the feds don’t care. If you have a conventional loan, your mortgage company may or may not require you to carry such insurance, but that’s a private business decision.

    And that’s the way it should be: if you are taking a federally guaranteed mortgage, then the government has a vested interest in protecting its investment. If you don’t have a federally insured mortgage, it’s none of the government’s business.

    The Dana who used to have flood insurance (3e4784)

  79. My head is spinning over all the things mentally I chose not to do today. According to this line of reasoning just existing is enough to allow regulation under the Commerce Clause–it’s the leftist’s version of “I think, therefore I am.” ” I exist, therefore I can be regulated.”

    Rochf (ae9c58)

  80. Cogito ergo servus

    Dustin channels Descartes (b54cdc)

  81. Hey, we’ve got a new ruling to try; this should pass easily.

    Having fewer children affects future economic impact of the nation; and these children may cross state lines; therefore “interstate” clearly applies.

    Thus the Federal Government can ban all abortion as it potentially affects interstate commerce.

    Sorry, the choice to have an abortion is, at least in part, an economic choice; and as such can be regulated and that choice can be decided by Congress.

    Roe v. Wade was wrong and under the new rules of “Constitutional” Abortion may be banned at the Federal level without issue.

    Or did I miss something?

    ertdfg (25ea0f)

  82. Rochf – and the leftists conflate regulation with mandate, so it is even worse.

    JD (b41a4e)

  83. kman apparently misses the point even more than usual with his tax comparison …

    The Gov’t cannot force you to pay taxes … you can absolutely legally avoid paying taxes in the US … of course, to do so in a fully legal way, you have to find some way not to engage in any activities which can be taxed … no buying, no selling, no earning over certin amounts, and so on …

    It *can* force you to pay taxes if you choose to engage in activities which the Constitution (Federal and/or State) allows it to tax …

    I would be curious just how often the judges in favour of Obamacare have been reversed by higher Courts, as compared with how often the two judges who ruled against Obamacare have been reversed …

    Alasdair (e7cb73)

  84. ertdfg @ 80: Not only can the feds *ban* abortion under this contortion of the Commerce Clause, that can also *mandate* abortion. For example, an unborn kid maybe, might, possibly be predisposed to some condition that would cause an economic burden on society, or maybe some Malthusian minded administration just thinks there are too many people consuming resources – abort, abort, abort!

    Madkangaroo (395448)

  85. Mind you the same malthusians who think the world is overpopulated have no problem allowing muslims in.

    DohBiden (984d23)

  86. Should we change Rush “Freewill” lyrics?
    “If you choose not to decide, you still have made a choice”
    to
    “If you choose not to decide you still engage in activities may be upheld if they are an essential part of a larger regulatory scheme”

    duane (e1d60a)

  87. Someone may have already commented this (didn’t read ‘em all), but aside from the sheer lunacy of this illogic, there’s this: her “reasoning” makes it impossible to distinguish ignorant non-choices from knowing choices. Did someone make a decision not to do something after considering the matter carefully, or did they never even know about the matter in the first place? From all discernible evidence, either scenario would look identical.

    A rock does nothing, it just sits there. Is it ignorant and making no choice, or is it possessed of intelligence and sitting there because it is stubbornly choosing not to go fishing?

    rasqual (6a8670)

  88. Well, you know, you academic types, lawyer word symbol idea shuckers, have supported, encouraged, controlled physical and economic control of free citizens, so why not you guys? ( And besides, Doc’s and Lawyers, they got your ticket to operate. Be nice or else. )

    Come on in the state control pool. You guys built it. It’s warm and wet and smells of crap and piss and us lumpenproles have been pushed head first down in to it for decades.

    ( Looks like the Second gets new converts to us gun owning, pick up driving, bitter clingers every day )

    Paul (190db0)

  89. Comment by rasqual — 2/24/2011 @ 6:29 am
    The law already does that, but it does it in different contexts.

    Suppose you change the oil in your car, and leave a small slick of oil on the driveway. A neighbor comes by to talk to you, slips on the oil and falls with resulting injuries.

    He sues you and you (or hopefully your insurance carrier instead of you) get to pay the bills, because the law doesn’t care which of the following are true:
    1) You’re lazy and haven’t gotten around to cleaning up the oil
    2) You were late for work and didn’t have a chance to clean up the oil
    3) You didn’t even think about cleaning up the oil
    It will say (absent other factors, like warning your neighbor about the oil, or the oil being on a patch of ground people don’t normally walk over), you were negligent in all three cases.

    kishnevi (2d88a8)

  90. While this may not be exactly the same, doesn’t government regulate “lack of action” already? For example: If a person is injured and in need of medical aid and will die soon if not forthcoming, and I am the only person that knows of the persons distress, if I stand there and watch them die in many jurisdictions I would be guilty of a crime. This is regulation of “inaction”.

    However, in this case I agree with most others here that this judge is very, very wrong.

    RT (3f82f5)

  91. Lets see how far we can extend this decision logically. Mental activity = physical activity. Anything that affects the economy may be regulated under the Commerce Clause. Well, while voting for the President is not strictly a commercial activity; the President through their choice of officers and the regulations which they approve certainly have an effect on interstate commerce that can hardly be described as attenuated. So much for the Commerce Clause as a limitation. Now since mental activity = physical activity, all citizens of the United States who did not physically vote have affirmed that they do not wish for a change in Administrations so their votes must now be counted towards the total cast in favor of the President. Unless the court disagrees with the Administration in which case they shall be deemed as having with held their support from the Administration and their votes will be added to the totals for the challenger.

    Rod T (a65631)

  92. Is Paul one of the idiots from LGF.

    DohBiden (984d23)

  93. If Obamacare is upheld, this will no longer be a gov of limited powers. If gov can force us to buy a private product we dont want, it has the power to force us to do anything. This judges decision is the ultimate Orwhellian reasoning. Now “thought” and making a decision NOT to do something, is the same as activity. Thoughtcrime anyone?

    richard40 (19a56d)

  94. rasqual, you more clearly made the point I was trying to make.

    One disturbing aspect of this is the government assuming a level of understanding about non-actors, and using that assumption to delete their liberty, hold them to penalties, force them into systems. It’s truly a perversion of our system of government.

    Dustin (b54cdc)

  95. 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.

    Robert Bidinotto (17de16)

  96. So her argument is that there is simply no such thing as inactivity, and that the government has a right to presume that anything you do not do is a consequence of having made a conscious choice not to do it? It is difficult to sum up in words how bad her argument is. Its awfulness speaks for itself.

    I wonder whether she believes that anyone who does not join the military has made a conscious choice to negatively affect US national security, or at least affect it in a way that that policy makers and experts may not like, and that they theyfore can be compelled to do so?

    Sage (9c232e)

  97. anyone who does not join the military has made a conscious choice

    Well, such a doubleplus unact thoughtchoice affects commerce as much as all the other things I didn’t think about or not do today. Surely that means the Federal Government can penalize me and regulate me on that basis, according to Gladys.

    Anytime you are not doing something that affects commerce, it’s mental activity that affects commerce by omission.

    That democrats like Gladys have to go this far to justify Obamacare is precisely why democrats are demonizing conservative Justices for their ‘lack of ethics’. Gladys’s rationale will not survive at the top Court.

    However, if we lose the presidential election in 2012, the Supreme Court might change for the worse.

    Dustin (b54cdc)

  98. Under her theory, if I just sit on my couch, day after day, take no action, then by my inaction, I’m affecting commerce and can be regulated. Will the government send people out to force us couch potatoes to move?

    Rochf (ae9c58)

  99. Roch

    don’t give them ideas!!!

    Aaron Worthing (e7d72e)

  100. Rochf – I think the Indiana Dems are hiding out near you, no?

    JD (eb120d)

  101. 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 …

    LoboSolo (b03a69)

  102. WTF?

    JD (d4bbf1)

  103. I’ll assume the “WTF” was meant for me.

    Think about it. Let me help you connect the dots.

    Our thoughts are now actions …

    This is not a new ruling. It is just being applied differently. What is the basis for banning pornography? Is it not the attempt to control our thoughts?

    And with pornography it is even more insidious. There is a ton of pornography that can be found free. So there is not even an economic rational behind any bans … it’s pure thought control.

    To be blunt, if you oppose this ruling yet support pornography bans, you’re a hypocrite. They are both attempts at thought control.

    LoboSolo (b03a69)

  104. Yeah, I figured that was what you were saying. I just wanted to see you lay out your idiocy for everyone.

    JD (d4bbf1)

  105. If the government position is that my thoughts are economic activities which it can constitutionally regulate, I will no longer be bound to that Government. I have taken a pledge to defend my country, against all enemies, foreign and domestic. I will not submit to Tyranny.
    I am a citizen, not a subject.

    joe (0899bf)

  106. to lobosolo
    regulating pornography may be in the interest of the State because of the actors in the actual production. They have done something.
    the consumers are supporting this by their consumption of the entertainment.
    there is an action taking place.
    fantasies could be regulated with this judge’s ruling. world of difference. thought and action are different.
    i think of many crimes every day, committing none.
    recognize the difference?

    joe (0899bf)

  107. What is the basis for banning pornography? Is it not the attempt to control our thoughts?

    Are you serious? It is not illegal to think about explicit sexual ideas. No, it is not an attempt to control your thoughts that pornography of some varieties is banned. Child porn is banned because of the act of making it. Porn isn’t permitted on FCC regulated open broadcasts because that is obscenity, but you’re certainly free to look at naked ladies on the internet or by non-open broadcasts (cable, etc).

    That’s not similar at all to the notion that because the government assumes everyone who doesn’t have health insurance has made a mental activity that is commerce, it can now penalize me legally.

    Nice to see where your priorities are RE civil liberties, but honestly… I don’t think you should be all that worried about the government’s mind control operation. You’re obviously online. Porn is… right here buddy.

    Dustin (b54cdc)

  108. He has that tin foil, wrapped tight, though, to prevent the mind control rays

    khan noonian singh (bf58f6)

  109. loboslobbo represents another failure of our education system.

    daleyrocks (ae76ce)


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