February 23, 2011

Liberals in denial: Andrew Cohen

In The Atlantic, "one of the nation's leading legal analysts" manages to complete his leading analysis without once mentioning the newly discovered power of Congress to regulate your commerce-thoughts.

I would have imagined* that significant.

Instead, analyst Andrew Cohen dwells — apparently approvingly — on Judge Gladys Kessler's inappropriate policy views: Kessler suggests, says Cohen, that "those who do not purchase health insurance are making irresponsible choices that eventually harm others."

It would be one thing if Judge Kessler's admonitory musings were obiter dicta; that is, extrajudicial asides offered separate and apart from the substance of the ruling itself. The problem is they are integral to her reasoning: how else could she arrive at the conclusion that the federal legislative power includes for the regulation of personal decisions taking place wholly in the province of the mind.

Judge Kessler is speaking, Andrew Cohen believes, to all who "refuse to buy health insurance in the name of federalism and the 10th Amendment." I don't know if that's why they "refuse" to buy health insurance, but at least they found something in the Constitution which mitigates against the view that "commerce among the several States" means "among the several states of human consciousness."

That's the same Andrew Cohen, incidentally, who sought to preempt the expected effect of Judge Clyde Roger Vinson's January 31 order invalidating the PPACA in its entirety by dismissing it brusquely as "a stray decision by a conservative trial judge." But today he's enamored with this wildly injudicious exercise of authority by a liberal one.

If this decision is allowed to stand, I'll eat my tricorne cheese-hat.

* This imagining subject to federal regulation.

More: Liberals in denial.

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