The Congressional Regulation of Inactivity

As the briefs in the Affordable Care Act litigation are still being filed before the Supreme Court, I was intrigued by this new paper by Professor Corey Yung on “The Incredible Ordinariness of Federal Penalties for Inactivity that sheds new light on the problem before the Justices.  Here is the Abstract:


Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission where a common law duty is violated, but also offenses related to registration, record keeping, possession, receipt, preventive measures, nondisclosure, organizational, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws at issue if the mandate is held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended–it is about the shape and scope of federal criminal law that has been in place for over fifty years.


Of course, if you try to dismiss Professor Yung’s examples as the regulation of “activities,” then the decision not to purchase health care is probably also an activity.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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16 Responses

  1. Actually, it’s easy to distinguish these, as none of them are universal obligations that attach to all people by virtue of their presence in the United States. The lion’s share are either conditions imposed on the conduct of other activities (e.g. operate a particular sort of business and you are no obliged to do certain things), or consequences of prior acts (e.g. conviction for various things). The possession crimes are potentially different, but under Raich, possession is economic activity (and distinguished from non-possession). It’s an interesting paper, but hardly a serious attack on the arguments made by the mandate opponents. There are pro-mandate arguments I’m worried about, but these aren’t among them.

  2. Gerard Magliocca says:

    And in this case they will say that self-insurance is an activity.

  3. Corey Rayburn Yung says:

    Hi Jonathan,

    The various wrinkles that you add to the basic activity/inactivity distinction (universal obligations that attach to all people by virture of their presence in the United States) are not supported as relevant under existing case law and ultimately work against the challenger’s argument. As I note in Section III.A to my essay (which specifically addresses your particular counterargument): “If a mandate is limited to a smaller population, such as sex offenders or pornography producers, it would be less likely that such laws would have a strong connection to interstate commerce. In contrast, a law that governs economic inactivity of every citizen in the United States would generally have a tighter nexus with interstate commerce.” As far as the Lopez line of cases is concerned, general applicability as a distinction works against the ACA challengers.

    Regardless, I include numerous examples of crimes that are laws of general applicability including those in the categories of obstruction, receipt, possession, and misprision (if you are defending an originalist argument against the mandate). Those crimes apply to every person in the United States without condition or limitation.

    Also, the idea that sex offender registration statutes and similar laws connect a regulated activity (the prior sex offense) with an inactivity is addressed in Sections II.A and III.A. Primarily, though, Ex Post Facto Clause cases in every circuit have made abundantly clear that the prior sex offense is not being punished by the registration requirement. As a result, the only thing being punished in certain sex offender registration cases is the failure to act (register).


  4. Orin Kerr says:


    In my experience over at the the VC, enthusiasts of the proposed activity/inactivity distinction counter these arguments by announcing that you are obviously misunderstanding the test, and then declaring confidently that the test exists at precisely the level of specificity needed to reach a conclusion that the exact kind of inactivity regulated in the Affordable Care Act has never been regulated before. You can counter that this chosen level of specificity is arbitrary and results-oriented, but then you’re not proposing the test, so you are at a disadvantage in saying how it should apply.

  5. Corey Rayburn Yung says:

    Now that I finished teaching my 8 AM class, I wanted to add one elaboration of my point about why Jonathan’s distinction undermines the anti-mandate argument, consider these. Based upon Jonathan’s argument:

    Sex offender registration = constitutional
    Everyone registration = unconstitutional
    Non-custodial parents obligation to pay child support = constitutional
    Everyone pays child support = unconstitutional
    Porn producers must permanently keep proof of id of employees = constitutional
    Everyone must permanently keep proof of id of employees = unconstituional
    Social Security recipients must not keep unlawful funds = constitutional
    Everyone must not keep unlawful Social Security funds = unconstitutional

    Since we are talking about the Commerce Clause, it seems bizarre and against every precedent to say that the statutes with smaller interstate economic effects are constitutional while those with much, much larger interstate economic effects are unconstitutional.

    Of course, Orin may be right (as his endless comments discussions at VC have indicated) that Jonathan will amend the test to try to prevent the arguments to absurdity. That is why I tried to discuss many different types of crimes and cite actual cases so that such slippery distinctions just create different absurdities. What I call the abstraction problem in Section II.A of the essay works pretty well as an argument strategy on the Internet, but seems poorly fitted for oral argument or briefing before the Supreme Court.

    I’m perfectly fine with the anti-mandate argument that many (if not all) of the statutes I discuss are unconstitutional exercises of federal power. Indeed, I have argued in my scholarship that a few of them are unsupported by the Commerce and Necessary and Proper Clauses. But the endless wave of distinctions unsupported by case law don’t effectively make the mandate “unique” in American history. If the Court wants to strike down the ACA mandate, they should be willing to overturn large segments of federal criminal law as well.

  6. Joe says:

    “Actually, it’s easy to distinguish these, as none of them are universal obligations that attach to all people by virtue of their presence in the United States.”

    It is appreciated that those like at least two here who are no fans of the policy point out the weakness of the arguments against it in this fashion.

    Note that, repetition doesn’t change this, the requirement is not “universal” to “all people” who are “present in the United States.” “Attachment” to something that results in a negative result entails a subset of such people.

    The failure of opponents or even many who simply discuss the law to state this simple but very important matter makes it far from surprising that the whack-a-mole game Prof. Kerr alludes to occurs so often.

  7. Gerard N. Magliocca says:


    One problem with your argument is that the individual mandate is not universal. It applies only if someone does not fall under one of the exemptions in the Affordable Care Act. So it is conditional.

  8. Joe says:

    Prof. Magliocca flagged the problem too but it is one that is missed by many people. I personally find it annoying but looking past my sentiments, it is a problematic example of talking past each other and other things.

  9. pc says:

    “under Raich, possession is economic activity”

    it’s not unheard of for people to find marijuana growing on land they own, through no fault of theirs. I could be wrong, but I would think that the feds could get a conviction for possession if they could show that (1) you knew of the presence of marijuana for long enough to get rid of it, and (2) you chose to do nothing. (that would qualify as a voluntary act of possession in Illinois, anyway). If this is correct, how does this not punish inactivity?

    p.s. sorry if this is addressed in the paper, I can’t open it

  10. A few quick points:

    – In considering what a statute regulates, I’m a formalist, so how the statute is written matters. If a statute imposes a blanket mandate, and then carves out exemptions to prevent unconstitutional application, it is still universal. (The distinction here is similar to that behind the argument that all challenges to exercises of enumerated powers, as such, must be facial, and cannot be as-applied — which is the only way to understand the court’s precedents in this area.)

    – To test whether a statute is universal, I offer a simple hypothetical test. A person suddenly materializes in the United States and does absolutely nothing. Are they bound? By the terms of the statute, the mandate applies to them, even if assessment of the penalty is dependent on other things. I don’t think any of the other examples do.

    – The issue under the “substantial effects” test is not the magnitude of the effect, but the nature of the effect. This is the basis for the economic/non-economic distinction, and the reason why the Court did not care one whit that the economic consequences of gender-motivated violence are substantial. Further, the addition of a jurisdictional element necessarily narrows the scope of a statute, but it also is a sure way to preserve its constitutionality. So the number of people affected by a given law is irrelevant.

    – I believe the conclusion in Raich that possession is economic activity is wrong, and would like to see it overturned. The only permissible way to reach possession should be the Necessary & Proper clause. And for some other possession crimes, I’d argue that criminalizing unknowing possession cannot be N&P to the overall scheme. I’d like the Court to take these steps, but it’s not necessary for my argument about the mandate.

    A final point. My claim is not (and has never been) that the Court is obligated to strike down the mandate under existing precedent. Rather my claim has been that in this case (as in Lopez and New York) striking down the mandate is consistent with precedent and can be done in a principled way that doesn’t require line-drawing any more arbitrary than we see in federalism cases generally, and that upholding the mandate (further) compromise the notion of judicially-enforcement limits on enumerated powers.


  11. Joe says:

    “To test whether a statute is universal, I offer a simple hypothetical test. A person suddenly materializes in the United States and does absolutely nothing. Are they bound? By the terms of the statute, the mandate applies to them, even if assessment of the penalty is dependent on other things. I don’t think any of the other examples do.”

    What are they “bound” to? If some law says people have to flap their wings and fly but if they aren’t 200 years old that nothing will happen to them if they do, does it “bind” them in any real sense?

    Your person here will not be bound to do anything if s/he does not meet various criteria. If this is your definition of “universal,” the average person would find it curious. The problem is that so many use words with certain usually understood meanings as if people understand they are using them in special ways. This doesn’t work for me.

  12. Andrew Carlon says:

    “To test whether a statute is universal, I offer a simple hypothetical test. A person suddenly materializes in the United States and does absolutely nothing. Are they bound? By the terms of the statute, the mandate applies to them, even if assessment of the penalty is dependent on other things.”

    If the person suddenly materializes in the United States, are they lawfully present in the United States? See 26 USC 5000A(d)(3) (exempting from the mandate—not the penalty attached thereto—any individual who “is not a citizen or national of the United States or an alien lawfully present in the United States”).

    If by “suddenly materializes” you mean “comes into being” (rather than beamed in by some kind of Star Trek teleporter, in which case I’m pretty sure they aren’t lawfully present), they’re arguably entitled to citizenship because their miraculous creation constitutes being “born . . . in the United States” for purposes of the 14th Amendment and 8 USC 1401. The Supreme Court may have to reach the original public meaning of the word “born” in the 1860s to decide this case. (Perhaps Gerald Magliccoa has encountered an instance where John Bingham referred to Adam or Eve as having been “born”.) Otherwise, I think the statute meets your test.

  13. Tony Antognoli says:

    Doesn’t the whole argument of this essay fall apart because the failure to comply with the mandate / pay the “penalty” associated with it is expressly not criminal? See 1501(g)(2)(A) of the ACA.

  14. Corey Yung says:

    Hi Jonathan,

    I’m puzzled why the person-materializes-in-the-US test has anything to do with the Commerce Clause. But even accepting the distinction (and the idea that the mandate is universal which others have addressed), numerous examples in the essay and in my responses still create problems for you. For example, if everyone is obligated to pay to a collective child support fund, your distinction makes that example unconstitutional even though a more limited statute is constitutional. Further, statutes governing illegal receipt, constructive possession, and obstruction apply to everyone the moment they “materialize” in the country.

    You state that the substantial effects test only evaluates the nature and not the magnitude of the connection between the activity regulated and interstate commerce. I think that is simply wrong in the numerous applications of Lopez. The nature of the connection determines which of the three Lopez categories a statute is justified under. However, for third category (substantial effects) cases, the magnitude of the connection is clearly important to courts. See, e.g., United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002) (addressing a carjacking law); GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (considering ESA related case). The reason that the Court in Morrison didn’t “care” about the gender motivated violence effects was because Congress did not make any findings to support such a claim.

    Hi Tony,

    The distinction between criminal and non-criminal statutes only works in favor of the mandate. The criminal statutes, on the whole, have less clear connections to interstate commerce than health care laws. Regardless, the key cases in this area for the activity/inactivity distinction (Lopez and Raich) were reviews of criminal statutes.


  15. Tony Antognoli says:

    Thanks for the response, but it doesn’t exactly answer my question. It seemed like you were arguing that if the ACA mandate is struck down as unconstitutional, it calls into question a whole host of criminal laws that purport to regulate inactivity. But why can’t those criminal laws remain in place if a non-criminal mandate is struck down?

    Also, have you spoken with your colleagues Katie Kennedy and Barry Kozak about this argument? I’d be curious to hear their opinions as well. Thanks again.

  16. Joe says:

    Tony Antognoli, I don’t understand why criminal statutes are significant to you. As noted, the cases where the question arises usually are criminal in nature, but the POWER being applied can be used criminally or civilly if toward the same end. If U.S. v. Lopez involved a civil penalty instead of a criminal one, it wouldn’t have come out the other way, right?