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March 02, 2011


Danube of Thought

Barnett has done more than anyone else I know of to frame and articulate the debate on this subject. He has pretty well got it established, as both sides accept, that (1) there is no Supreme Court precedent for upholding the mandate, and (2) the issue is whether the congress can regulate inactivity as opposed to activity.

That, and the fact that an unprecedented 26 states have sued the federal government over the issue, sets the stage as favorably as it can possibly be set. Time to cross our fingers.


Once again, Dancing with Martinis..I totally, like I mean totally, agree. Best of all, he can explain it simply and simply is a sign of comprehension instead of a desire to obfuscate muddy thinking.

Old Lurker

Well if Clarice and DoT both agree with Barnett, we can close this thread right now and wiat for SCOTUS to catch up and do the right thing.


--(2) the issue is whether the congress can regulate inactivity as opposed to activity--

The sad part is, it seems pretty clear that inactivity as the only thing congress can't regulate is about the best outcome we can hope for.
Not bad work by the libs considering the commerce clause was essentially written to prevent states from applying tariffs to other states' goods and from issuing their own currency.

Danube of Thought

the only thing congress can't regulate is about the best outcome we can hope for.
Not bad work by the libs

Unfortunately we're already there. They've been working on it for 75 years, and up to now they've pretty much had their way.

The real sub rosa issue in this case is whether there is any limit at all on congressional "commerce" power. I think those who favor the mandate, if given truth serum, would probably say that there isn't.


What if the supremes take the opportunity to overturn Wickard v. Filburn? That one decision seems to be the crux of the problem.


--Unfortunately we're already there.--

Yeah, that's what I meant DoT.
Seemingly implicit in the argument that the feds may or may not regulate inactivity is the concession that they can regulate any activity. Even winning this one means closing the barn door with, at best, one broken down old nag left inside.


I'm sure Judge Gladys Kessler of DC can find absolutely no limit on the commerce clause reach--neither can about 90% of DC residents.


It looks as though President Obama may have decided that getting re-elected in 2012 is more important than saving the planet from the much-dreaded global warming.

Jane (sit on the couch or save your country)

The president has also decided that getting re-elected is more important than leading - as in dealing with the debt.

I asked this question over at you too. Does anyone recall another president who refused to lead in a major crisis?

Thomas Collins

See LUN for materials on Federal District Judge Kessler's decision upholding the individual mandate.

I have read in the media that a significant part of Judge Kessler's reasoning is that the thinking process of whether or not to buy insurance is itself activity. However, I have yet to read the decision, so I can't vouch for the accuracy on the initial media reports.


It is as ludicrous as you have heard, TC, she did cite Wickard, Raich, & Lopez, but in a way
that suggested she didn't understand the issue,

Thomas Collins

In other SCOTUS news, see LUN for an article on the 8-1 decision upholding the right of the Westboro Baptist Church to protest at military funerals.

If any of those protesters visit this site, I think I'll exercise my First Amendment rights and let them know that that I can think of few more execrable activities than their protests.

Thomas Collins

Thanks, narciso. It sounds as if Judge Kessler doesn't think there are limits to Congress's power to legislate under the Commerce Clause, but didn't want to say so.

Jack is Back!

I hope the Waldo faction of our government, that when they are found, have enough common sense not to replicate the desperate naivety like the AT&T argument that said corporations were the same as persons and came under privacy laws. Roberts gave a very humorous response in his opinion that is sure to leave a bunch of litigators red-faced.

Somehow, it was a shot across the bow of the good ship Waldo. You like to insult me in public on live TV, then wait until you read my opinion on Obamacare.

Thomas Collins

In answer to a question by Senator Sessions, Professor Barnett deftly destroys the argument that it is judicial activism for a Federal District Judge to find the mandate unconstitutional, and then concisely explains why it is those judges upholding the mandate who are most likely the activists. Here is the relevant Q&A:

"[Q]Do you believe that a judge is a judicial activist when he decides a question of first impression in light of the text and original public meaning of a provision of the Constitution, rather than further extending the Supreme Court’s expansive reading of a provision?

[A]As the Supreme Court demonstrated in DC v. Heller, in a case of first impression, it will examine the original meaning of the Constitution. Where the Supreme Court has developed doctrines governing the scope of the Commerce and Necessary and Proper clauses, it is not the responsibility of an inferior federal judge to extend Congress’s power beyond that already authorized by the Supreme Court. This criticism would more justly be leveled at the district court judges who have upheld the mandate by extending the power of Congress to regulate “economic decisions” — something the Supreme Court has never mentioned, much less held. But whether or not it is proper for an inferior federal judge to uphold new and unprecedented Congressional powers, federal district court judges are under no obligation to do so."

Danube of Thought

Here's Judge Kessler's money quote about "mental activity," which I would guess she wishes she had phrased somewhat differently:

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. See Thomas More Law Ctr., 720 F.Supp.2d at 893 (describing the “activity/inactivity distinction” as an issue of first impression). However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance…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.Judge Kessler's money paragraph about "mental activity":

If the mandate is upheld, the House should immediately pass a bill mandating that all adults purchase a lifetime annuity and long-term care insurance. As Ranger suggested, such a bill would allow the elimination of Social Security and Medicare, the two entitlements bleeding the country dry.


Barnett's response is the way I recall the law, but then I'm ancient.

Jane (sit on the couch or save your country)

You must not be that ancient Clarice. I don't think I remember any law any more. OTOH Dot can't be more than 25 with his recall.

Thomas Collins

DoT, perhaps Judge Kessler's opinion will help topple ObamaCare when it gets to SCOTUS. Judge Kessler has (perhaps inadvertently) highlighted the point that if SCOTUS upholds ObamaCare, it really will be giving Congress license to require folks to do anything under the Commerce Clause unless another Constitutional provision is violated or, assuming SCOTUS still imposes federalism constraints, unless a state or local governmental entity is the one subject to the mandate. Because the SCOTUS Justices not only follow the election returns but also presumably follow the news, they might think twice about upholding a provision that most would interpret as virtually eliminating any constraints on Congress to regulate folks.

When I am in a less optimistic mood, I recall that Professor Wechsler, who was hardly a prog, had a sufficiently expansive view of the Commerce Clause to justify upholding ObamaCare (although I don't recall whether Professor Wechsler directly addressed the issue of regulating inactivity). It is not clear to me that Justices Roberts, Alito, Scalia and Thomas would be sure votes against ObamaCare.

Combining this thread with the exercise thread, could one say that if Judge Kessler's rule worked in the case of human physiology, deciding not to exercise would be an activity generating the benefits of exercise? If only!



Please stop with the ancient comments. You have one of the youngest minds I know.


hanks, MaryW.
I DO recall Kagan saying Congress could pass a law requiring us to eat broccoli..In case anyone doubts how she'd vote.

Jane (sit on the couch or save your country)

Rush just said that Wisconsin passed a law to fine the fleebaggers $100 a day plus costs for every day away.



If the mandate is held to be constitutional and the limited and enumerated powers given the federal government are as a consequence unlimited and infinite then contra the old saw the constitution is a suicide pact.


About those fleebaggers - it might be too late for the Madison Tea Party protests, but you know what would really get the unions frothing? If we appropriated that timeless ode to narcissistic adolescence, Pink Floyd's "The Wall".

"When we grew up and went to school,
there were certain teachers
who would hurt the children anyway
they could."


You can't have your pudding.

Old Lurker

Don't stop there, Ext. I think they should also mandate that every citizen maintain enough cash in a savings account to provide for any period of unemployment.

Since we're talking mental activity, should we not require sufficient effort by every student to earn at least a 3.5 GPA and 1400 on the SAT's?


Steve Forbes explains why and how Barry is Jimmy Carter in a better, albeit still empty, suit.

Danube of Thought

TC, I am not confident about any Justice's vote either, except for Kagan and Sotomayor. I am hopeful, but no more than that.


hey! teachers! leave my paycheck alone!


all day long you're just another twit on the lawn.


"The Mall," by Pinko Floyd.

Sara (Pal2Pal)

Lawyers! Hmmmph. "Regulate inactivity?" Why not just say it out loud. This judge has said that Congress has every right to regulate thought.


Looks like Obama might take A FEW questions tomorrow. How good of him.

From the article - "Obama has been pretty clear that he finds the trivial obsessions of the press corps tedious -- who could blame him?"

I could. I'll tell ya who's tedious....


Part of a comment at the Politico link - "...He reads speeches composed by others, signs legislation he had no part of crafting, never takes an active role in anything - his politics are murkier today then before he was elected. His attitude is let others do the work, so if it goes wrong they take the blame. An utter disaster as President - a do nothing who allows people of bad will to govern, while he enjoys himself. He must NOT win re-election!"
Amen, amen, & amen


It is a bitter irony that the progs, who despise commerce, have relied upon the clause in the Constitution intended to promote free commerce to further its limitation and destruction.


If I were one of those runaway WI Senators and I saw this article, I'd say screw WI, I'm going to go teach in Illinois.

Illinois Teach Salaries - WITHOUT BENEFITS

Getting right to the point: Illinois’ top paid teacher in 2010 is high school Physical Education teacher, Mr. Mintz, who made $191,124, BEFORE BENEFITS. Second highest paid at another school is middle and high school English teacher, Mr Liesz making $189,219 BEFORE BENEFITS.

Twenty-six of the Top 100 are Physical Education teachers – 13 of them in the Top 50! Six are English teachers, 3 are U.S. History teachers, 2 Biology teachers, none are simple Math teachers. There is 1 Calculus, 1 Trigonometry, 1 Geometry, 1 Algebra, 1 Physics, 1 Chemistry, and 1 Political Science/Civics teachers on the list.

By contrast, there are 9 Driver Ed teachers, 5 Learning Behavior Specialists, and 4 Drama/Theatre Arts ranking in the Top 100.

The average salary for the Top 100 salaried teachers in Illinois is $158,432 BEFORE BENEFITS. The average salary for the 26 Physical Education instructors is $167,544. The average Driver Ed instructor makes only about $4,000 less than the average of all others on the list. Get this: the average salaries of English teachers in the Top 100 is $159,623 – well under the average of Phys Ed instructors.

There is much more at the link.


iF, huh? Don't know how that happened.

Danube of Thought

I expect Judge Vinson will issue his "clarification" tomorrow, and I also expect that he will tell the government that what he meant, and what he means, is that the law is unconstitutional in its entirety and they are not to implement it.

I also expect that they will immediately seek a stay in the 11th Circuit, and the stay will be granted. Don't be discouraged when that happens; it says nothing about how that court will rule on the appeal itself.

...assuming SCOTUS still imposes federalism constraints, unless a state or local governmental entity is the one subject to the mandate.
It sure looks to me like state and local governments are required by Obamacare to provide health insurance, with particular mandated coverages, to all of their employees.

Except for the 700 waivers granted. That many exceptions alone should tell you that the law is fatally flawed. What happens if the 26 states just refuse to implement until we have a Supreme court decision?


While I fully expect that the 11th will give the government that stay when they ask for it, I wouldn't be shocked if they refused. One issue that judges unite on is that proper respect be given to the judiciary, and this is a particularly egregious and obnoxious example of the executive branch acting as if they are above the law. They were required to file for a stay within a certain number of days, and they missed the deadline, and the federal rules of procedure say that there are no exceptions.

Poor schmucks have sat in prison for decades, others have been executed, because they missed a deadline for filing an appeal. Why should the president and the attorney general get to make their own rules and their own schedules?


And yet again, DoT and I see eye to eye on this.I will say that instead of buying time with this trick request for clarification, I believe that Vinson will come out with blistering language and the 11th Circuit will feel a need to expedite things. I am not certain , however, that the Ct of Appeals will stay more than the portion of the opinion which applies to the federal govt. The states did not seek clarification IIRC and it may be that the CT will decide not to extend the stay to them/


Cathy, were they outside the time to seek a stay? If so, you may be right.


Brave and determined lone tea partier (Video).

Danube of Thought

I couldn't find the time limit for filing for a stay, only that it is covered by the regular civil procedure rules and not the appellate rules. My recollection is that the last time this came up Clarice found the answer, but I can't remember what it was.

The government does seem to have been pretty snotty in their approach to this. Never, ever a good idea.

Danube of Thought

Good question, Maryrose. I have no idea.

Rick Ballard

If they did blow the time then consideration should be given to it being purposeful. Obamacare is a stinking albatross that the Dems would like to slip over the side as soon as possible.


If you go to this link and scroll to Appellate Procedure, open the PDF and go to page 76 and scroll, there is a section on stays. Too much lawyer gobbledygook for me, so one of you lawyers can interpret.


Anyone interested in Twitter should check out this site:

Truth About Bills


Thanks glasater. Here is their website too - TruthAboutBills.com.

Here is one of their videos at GatewayPundit showing a Tea Party guy standing up to the union protesters in Denver. The young man does a great job & all the leftists do is scream, curse, call names, & flip the bird....
Pretty sad.

Sara (Pal2Pal)

Janet: I linked that video above. He was good, huh?

Sara (Pal2Pal)

I like to read the motivational quotes of the day, so for all you dieters out there, keep up the good work, ol' Ben is with ya'.

"To lengthen thy life, lessen thy meals." - Benjamin Franklin

Captain Hate

The young man does a great job & all the leftists do is scream, curse, call names, & flip the bird....
Pretty sad.

History, assuming there's anybody around to write it, will not be kind to the commiecrats. Right now we're seeing the death throes of a rotten stinking piece of garbage that should've been disposed of years ago. From now on it's sound and fury signifying nothing for them. I'm hoping that the Repubs in Wisconsin don't go wobbly and in the campaigns for the state senators facing recalls by the scum, show the filth in Madison in all their ugliness that the MFM is keeping hidden.

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