Rich Lowry makes a good point about federal district court judge Gladys Kessler’s recent decision, which held that ObamaCare’s individual mandate is not unconstitutional.  (That’s the appropriate terminology; judges have no more authority to declare laws “constitutional” than juries have to declare someone “innocent.”)  Judge Kessler, a Clinton appointee, appears to support ObamaCare as a matter of policy. In her ruling, she repeatedly makes the inaccurate claim, contradicted by President Obama’s own Medicare chief actuary and the Congressional Budget Office, that ObamaCare would lower health costs. So it’s not surprising she offers a curious defense of the law’s constitutionality.  Judge Kessler seems to say that Congress has the constitutional power to regulate Americans’ thoughts.

Importantly, Kessler grants that ObamaCare raises constitutional questions that have never before been raised.  Moreover, she asserts that, in essence, the Obama administration is arguing that Congress has the constitutional power to regulate Americans’ mental as well as physical activities.  She explains, “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.”