A federal judge has upheld the national health care law, making it the fifth ruling on the merits of the legal challenges to the individual mandate.
Like the other decisions upholding the law, the logic of Kessler's ruling demonstrates how broadly one has to interpret congressional powers to find the mandate constitutional. In something right out of Harrison Bergeron, Kessler notes that Washington has the authority to regulate "mental activity":
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.
This Clinton appointee sees no problem with the federal government imposing regulations on its citizenry's "mental activity." What could go wrong?
Klein goes on to point out that Judge Kessler joined every other federal judge thus far in rejecting the Obama administration's legal argument that the individual mandate represents a legitimate exercise of Congress' power to tax. This argument is ironic in and of itself because the president spent a great deal of energy insisting that the mandate was not a tax during the national healthcare debate.