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Congressional Power to Regulate Inactivity

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[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 . . . .

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  • Chuck Gates says:

    I agree that the uninsured negatively impact the commerce of the health care system. But I wonder if that is enough to get an appeals court to rely on it to rule that Congress can compel action.

    I am a very novice lawyer, so I need your help here. But I cannot think of a time where the Court has used the Commerce clause to force somebody to act.

    Congress has the authority to force us to pay taxes and respond to the Census, but those are both enumerated in the Constitution. The Court has forced government bodies to act to desegregate schools, but that is based on a completely unrelated legal premise that has nothing to do with the Commerce clause.

    Imagine the slippery slope argument against a ruling accepting the argument that a potentially negative impact to interstate commerce resulting from an individual’s inaction justifies endowing Congress with the authority to compel somebody to engage in that commercial activity.

    Let’s slightly modify the facts of Wickard v. Filburn (Court allowed regulation to limit farmer who grew more wheat than law allowed even though it was only for his own consumption). Say Filburn owned the largest farm in the U.S. and simply decided to switch from growing wheat to some other activity on his land. Even if this decision caused an immensely negative impact on the wheat market, with wheat prices soaring across the country and people starving, I can’t imagine an appeals court would compel this particular farmer to start growing wheat again.

    I must be missing some example of the Court compelling action.

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