Congressional Power to Regulate Inactivity
[T]here’s pretty much nothing that Congress can’t do and that’s the end of the enumerated power scheme . . .
if the Supreme Court were to uphold the Constitutionality of the individual mandate. So says Randy Barnett in an interview on NPR’s Morning Edition earlier this week, in which he reprised his Heritage Foundation argument.
Scary, if true, but just because a particular law someone opposes does not encounter a Constitutional limit doesn’t mean there are no limits. In fact, there are still plenty. Under well-established precedent, Congress still could not violate any of a host of individual rights protected by the Bill of Rights, or regulate matters that are noneconomic. Randy’s carefully crafted argument makes neither of these claims.
He studiously avoids invoking substantive due process or the Takings Clause – the very doctrines that are most attuned to his concerns about individual economic liberties. Instead, he wants to protect individuals by invoking federalist (states’ rights) concerns. His core argument is that Congress would be overstepping its authority to regulate interstate commerce because mandating insurance purchase does not regulate an “economic activity.”
It’s obvious that insurance is economic, so what he stresses instead is that being uninsured is an inactivity, thus failing to meet the imagined constitutional requirement that regulation must address activity. The Constitution, of course, does not insist on “activity,” and Randy concedes that Congressional powers extend beyond the actual exchange of goods and services across state lines, to include activities that affect interstate commerce.
But what about inactivity that affects interstate commerce? That’s where Randy wants to draw the line, but when the Court has sometimes used the phrase “economic activities” in its interstate commerce opinions, did it really intend that much stress on the second word? I doubt it, since all the key cases are about whether the activity in question had an economic effect. No case I know of comes close to embracing his novel analysis.
If we start drawing constitutional lines between regulating or taxing people who do things and those who don’t do things, we’ll surely be in a huge legal morass. As Justice Scalia famously wrote in concurrence in the Cruzan case (upholding a state’s refusal to withdraw feeding tubes):
it would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction . . . .