I suppose it's a metaphysical question: Is it more outrageous/scary to argue that Congress can regulate breathing, as Akhil Amar recently argued (prompting my "Every Breath You Take" parody) or that it can regulate thinking, as the latest federal judge to rule on Obamacare opined?
That is, Judge Gladys Kessler, echoing two other district judges who ruled in the government's favor, found that the decision not to purchase health insurance was itself an action and so reachable by Congress's power under the Commerce Clause. The activity/inactivity distinction that we Obamacare opponents have been pushing is mere "semantics," you see. Well, as Randy Barnett said in an emailed press statement:
This decision makes crystal clear that the government is seeking the dangerous and unprecedented power to regulate the economic "decisions" of all Americans -- including the decision to refrain from engaging in economic activity. If allowed by the Supreme Court, Americans would be reduced from citizens to the subjects of Congress, which would now have the discretionary power to run their lives.
He's right, unfortunately. But take a deep breath or breathe a sigh of relief (while both are still legal) because, at the end of the day, this latest ruling adds nothing to the debate except a new appellate court from which we can expect an opinion later this year. (It also ran the record on the "taxing power" argument -- the one so favored by the academics I've debate over the past year -- to 0-4, including two judges who otherwise ruled for the government.)
See also Ilya Somin's reaction.
Look, the arguments on both sides are clear: On the one hand, the federal government cannot require people to engage in economic activity under the guise of regulating commerce. On the other, the decision not to act is itself an action -- "mental activity"? -- that is subject to regulation. The battle lines are drawn, the armies of lawyers ready. The only remaining question is whether the Supreme Court will ultimately find that there are constitutional limits to federal power.