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.