The Spectacle Blog

Brief Thoughts on Constitutional Law

By on 2.23.11 | 11:19AM

Upholding ObamaCare requires a federal judge to find enormous elasticity in the Commerce Clause:

Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act. ...
Judge Kessler added: “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.”

As Cornell Law Professor William Jacobson observes, Judge Kessler's ruling theorized whether "mental activity, i.e. decision-making" might be governed by the Commerce Clause.

Well, the jig is finally up, folks. If anything you serve at the family dinner table involves "interstate commerce," your kids can probably take you to court and get a federal judge to decide that they don't have to eat their broccoli. Or to put it another way: "The Commerce Clause has proven voracious enough to swallow the rest of the Constitution. Any scraps left over will be devoured by the Due Process and Equal Protection clauses of the 14th Amendment."

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