The Inactivity Principle

Yesterday I read the briefs in Virginia v Sebelius, which is the most developed lawsuit challenging the constitutionality of the individual health insurance mandate.  I was struck by two aspects of the arguments made in those briefs.

First, the case boils down to whether there is a meaningful distinction between congressional regulation of commercial activity and inactivity.  Coercing people without private insurance to buy some fits well within the “substantial effects” test of the Commerce Clause and the relevant principles governing the taxing power.  Nevertheless, opponents say that these doctrines all presuppose that the objects of the regulation are or would like to participate in the relevant market. Making the unwilling buy a product or enter a market, they contend, is unprecedented and should be deemed out-of-bounds as an infringement of individual liberty.

How should this argument be assessed?  It is easy as pie for lawyers or philosophers to explain why there is no moral or practical difference between activity and inactivity.  For example, one could say that people without health insurance are participants in the market because they exacerbate the adverse selection effect and drive up costs.  On the other hand, the law makes distinctions between action and inaction all the time.  Active euthanasia and passive euthanasia are treated differently.  State inaction can lead to the same harmful effects as state action, but the former is generally not a problem while the latter is.  Thus, I’m not sure why that distinction should be excluded from the commerce and taxing area (or from health care specifically).

One possible response is that there are areas where Congress can “draft” citizens into action.  Military conscription and jury service are two examples.  In these cases, though, one could say that there are specific textual provisions involved or that there is a long tradition of congressional authority in the area.  Neither is true for health care.  Turning this around, however, one could also say that what links these compulsive powers is that they are core elements of citizenship.

Is health care a core element of citizenship?  Well, the statute passed this year is certainly trying to make it so, and there is some support for that view among the public.  This is why the results of the 2010 and 2012 elections matter.  They will either lend credence to this position or not, which in turn will influence how the courts view the inactivity principle.

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1 Response

  1. Dan Cole says:

    Interesting post Gerard. But I have a question (as a non Con Law guy): How significant is “a long tradition of congressional authority?” Is there a use-it-or-lose-it aspect to Congress’s constitutional authority? If so, under what constitutional theory?