Lowry: Obamacare's Ingenious New Justification
Rich Lowry writes in National Review:
"I can take care of my enemies all right, ” Warren Harding once said. “But my friends, my damn friends, they’re the ones that keep me walking the floor nights!”
In the sense that so irked Harding, Judge Gladys Kessler is a great good friend of Obamacare. The U.S. district-court judge in Washington, D.C., delivered a more telling blow against the law in the course of ruling it constitutional than critics have in assailing it as a travesty.At issue is the individual mandate. Two other district-court judges have struck it down on the grounds that Congress doesn’t have the power under the Commerce Clause of the Constitution to require that everyone buy health insurance. If someone doesn’t purchase insurance, he hasn’t done anything. He isn’t engaged in activity that may or may not affect interstate commerce, but in sheer inactivity. Never before has anyone thought Congress could regulate nonevents.
The easy-to-grasp distinction between an activity and inactivity is one of the most powerful legal arguments of Obamacare’s opponents. But they hadn’t yet run up against a jurist as ingenious as Judge Kessler. She brushes the activity/inactivity distinction aside because not doing something is a choice and therefore “mental activity.”
Why hadn’t someone thought of that before? The sophists in Eric Holder’s Justice Department must be embarrassed that they didn’t dredge up this killer rejoinder themselves.
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