Martin Karo: Thought crime comes of age

We’re stretched a little thin on the legal front, but reader Martin Karo has pitched in to offer this commentary on Judge Gladys Kessler’s Obamacare ruling today:

Orwell’s dystopian 1984 vision has come of age. Judge Gladys Kessler of the federal district court for the District of Columbia actually held, on page 45 of her ruling upholding Obamacare, that Congress has the right to regulate mental activity.
One wonders if liberal judges ever read their own opinions aloud, so they can absorb what they just “said,” or ever consider the ramifications. The case most like the one at bar — Wickard v. Filburn — involved a farmer who grew his own wheat during the Depression, to feed his chickens. The Roosevelt Administration sued poor farmer Roscoe Filburn, contending that his wheat production put more of his acres under wheat cultivation than he was allowed under New Deal legislation.
The Court held that, even though he was not selling the wheat and thus not marketing anything, the fact that he grew his own wheat meant he bought less wheat from other farmers. That, in turn, affected interstate commerce. To call that reading “tortured” is a compliment to torture, but that was the ruling.
Now apply the ruling of Judge Kessler to farmer Filburn. The Agriculture Adjustment Act of 1938 was part of a carefully considered regulatory scheme, intended to control how much wheat was marketed, and what the price would be. See pages 35-36 of Judge Kessler’s opinion. Suppose Mr. Filburn decides not to grow wheat on his wheat-eligible acreage. That affects interstate commerce just as much; now there are X bushels less of wheat on the national market, which will reduce the supply, which will cause prices to rise. Pace Judge Kessler, Mr. Filburn can be forced to grow wheat – and not just wheat, but Y acres of wheat — and fined and jailed if he refuses.
The sole difference between the two situations – the 1938 Act mandated a ceiling, while Obamacare mandates a floor – is a distinction without a difference. Both are complex regulatory schemes designed to control both the supply and the price of a market commodity.
And in a subsidiary point, Obamacare also does contain a ceiling: if you have a “Cadillac” health plan, Obamacare imposes a punitive 40 percent penalty on it – specifically intended to force all health insurance plans into the narrow band that they deem appropriate.
The very underpinning of the “must participate” argument – that all citizens partake of health care – is demonstrably untrue, as is the assertion that everyone who gets health care needs insurance. There are numerous religious sects whose members refuse modern medical assistance.
And it isn’t only the “rich” who can afford to pay out of pocket for health care; the Amish, for example, pay all of their own health care costs as a matter of religious principle. Unfortunately, I suspect that if Judge Kessler ever even bothered to balance mentally the “commerce clause” rationale for ObamaCare against the “free exercise” clause of the First Amendment, the Amish would lose.

Mr. Karo is an attorney practicing law in Philadelphia, Pennsylvania.


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