My co-blogger Jonathan Adler is right, in a sense, that efforts to draw a doctrinal distinction based on the requirement of an “act” are not new in American law. But I think that’s precisely the problem with the proposed activity/inactivity distinction in the mandate setting: American law has traditionally struggled with doctrines premised on act requirements, which generally end up being conceptually quite complicated. That doesn’t mean that introducing such a distinction is wrong. But it does mean that proponents of the proposed distinction at least need to articulate what version of the distinction they want to draw if they expect appellate courts to adopt it.
First, some background. Law students first encounter act requirements when they study the “guilty act” requirement of common law criminal liability (in latin, “Actus Reus”). For most law students, this subject arises in the near the beginning of their first semester. Students are told that there is an “act” requirement. But then they are forced to struggle with what the “act” means. Much to students’ surprise, it turns out that the requirement of an “act” can be satisfied by a failure to act — an “omission” — at least in some circumstances. Specifically, the “omission” can lead to liability if there is a “duty,” but when a duty exists is rather complicated. Plus, some actions don’t satisfy the requirement of an “act,” because they must be “voluntary,” with the catch that what counts as a “voluntary” act is actually rather unclear. Consider a person who commits a criminal act while sleepwalking. The person has “acted” in a common sense view, but have they committed an “act” for purposes of the “act” requirement? (Answer: No.) The discussion eventually veers into the philosophical, aided by the reality that no cases exist to answer how the distinction applies to a lot of the obvious hypotheticals. And, for most students, that’s just in the first few weeks of law school.
The important lesson for first-year law students is that distinctions such as “acts” and “omissions” that might seem clear at first blush can actually be very complicated. The proposed line can mean lots of different things, and students have to spend some time working through the possible meanings and grappling with the implications. Students that get the complications and ambiguities get an A. Students who continue to believe that there is a simple distinction — based, you know, on what seems to be an act — do not.
I think Jonathan’s discussion of the common law act requirement highlights some of the difficulties. Jonathan writes:
An obvious example where the law has long recognized a distinction between activity and inactivity is the duty to rescue. Under the common law, simple inactivity — a failure to rescue, by itself — can never be a source of liability. Rather, the duty to rescue only arises when one engages in certain activities — that is, when one takes certain affirmative steps, such as by creating an ultrahazardous situation entering a certain type of relationship with the individual in need of rescue becoming a common carrier, or taking initial steps toward rescue. And only after certain activities are engaged in can there be liability. Whether certain activities are, or should be, the source of a duty breach of which could result in liability has prompted significant debate, but the fact that the common law required activity of some sort before a duty could arise is clear. In other words, under the common law, activity could create the duty but inactivity could not.
The problem with this example, I believe, is that Jonathan is mixing up two different common law concepts: acts/omissions, on one hand, and legal duties, on the other. It’s true that the law does not ordinarily impose liability for failure to rescue. But — at least from a criminal law perspective — that’s because there is no duty to rescue, not because the law does not impose liability for inaction.
I think Jonathan recasts the common law doctrine of duties into a common law doctrine of acts and omissions by treating the creation of a duty as itself an act: He suggests that a person must “take certain affirmative steps” and enter into a relationship that creates a duty. But the common law doesn’t require “certain affirmative steps” for the creation of a legal duty. A legal duty exists in seven different situations: 1) When a statute imposes a duty (such as a statute prohibiting leaving the scene of an accident), 2) When a special relationship exists (such as parents vis a vis their children), 3) When there is a contractual duty (such as a lifeguard who has agreed to watch the beach), 4) When a person voluntarily assumes care, 5) When the person has created the danger, 6) When the person has an affirmative duty to control others (such as an employer who has a duty to stop an employee from committing crimes), and 7) When a landowner invites people on to his property. See Wayne LaFave, Criminal Law 214–19 (3d ed 2000). Some of those ways generally will require the taking of affirmative steps (3, 4, 5, 7), while others generally will not (1, 2, 6). Either way, Jonathan’s hypo is about when a legal duty exists, not about the distinction between acts and omissions.
Further, if the activity/inactivity distinction is simply about the common law voluntary act requirement, as Jonathan suggests, then I would think that the decision not to buy health insurance is an act that satisfies the common law standard. Under the common law standard, the decision not to deviate from a pre-set course of action over which a person has control can lead to liability. A common hypothetical in first-year Criminal Law classes is the driver who is driving down the highway with the cruise control on when he sees a little old lady slowly walking across the street. The driver realizes that if he does nothing, his car will hit and kill the little old lady. However, if he takes the car off cruise control and slows down, or if he comes to a stop, or turns the steering wheel a bit, his car will miss the little old lady and she will live. The driver decides he wants the old lady to die, so he does nothing and she is killed. The driver can’t then avoid criminal liability on the ground that he never acted. In this setting, the law treats the failure to act as an “act” for purposes of the actus reus requirement. The decision not to act and stop the harmful event that the person has the capability to stop satisfies the act requirement. See, e.g., Moreland v. State, 139 S.E. 77 (Ga. 1927) (owner of chauffeur-driven car is guilty of homicide when chauffeur drives negligently and gets into an accident that causes death, even though owner was not driving and was only passively sitting in the back of the car, as the driver failed to “curb the operator of the car”).
None of this means that there are no ways to draw a distinction between activity and inactivity. Obviously there are. The problem is that there are lots of different ways to draw the distinction. And it’s genuinely hard to know what the distinction means unless its advocates tell us which line they are proposing.
From a purely strategic perspective, I suppose I can understand why proponents of the distinction have tried to avoid explaining it. If you have to explain it, you quickly expose the same conceptual problems that first-year law students encounter when they grapple with the common law “act” requirement. You either end up saying that the distinction is a formal requirement that is easily circumvented (for example, the act requires physical motion), or else that it is some fairly minimal requirement (as with the common law act requirement in criminal law), or else that it is sort of substantive requirement that relies on some fairly complicated philosophical concepts that judges aren’t likely to be very eager to adopt as constitutional law (for example, the act must be such that it substantially interferes with the power of the state to impose an overly burdensome regulatory regime). None of these options are very appealing for proponents of the distinction. If you want to make the distinction seem intuitive — and thus something judges are more likely to adopt — it’s preferable to rely on our vague sense that the line must be easy and to avoid acknowledging the difficult choices.
If the recent oral arguments are a sign, avoidance may work with some judges. That’s especially true on the district court. But as the mandate moves up the ladder to the appellate courts, I think judges see the difficulty pretty easily. They naturally want some explanation of what version of the distinction proponents have in mind. Given that, I think it would be sensible for mandate proponents to be a lot more specific as to what version of the distinction they want the courts to adopt.
Robert says:
I don’t this actus whatzitz business has anything to do with the matter of whether mandating commerce can be considered regulating that very part of commerce. Congress could’ve written this business in ways that actually would regulate existing commerce, such as by outlawing fee-for-service medicine, thus making insurance mandatory for anyone who wanted medical care. But nooooo, they had to suppose they could regulate health insurance by making people buy it. Robert(Quote)
Jon Shields says:
Robert, the problem with that argument is that the Supreme court has long authorized laws that are not regulations of commerce at all (using the commerce clause + N&P). For example, in Raich, the result was that Congress could regulate non-interstate non-commerce due to the Commerce clause/Necessary and Proper clause, in the context of a broader regulatory scheme.
So the typical anti-mandate retort “there’s no interstate commerce to regulate!” obviously fails — the Supreme Court has already authorized laws involving non-interstate non-commerce. That ship has long since sailed.
Perhaps realizing that this basically destroyed their case, the anti-mandate folks nonetheless struggled to find a distinction (any distinction) that would allow the mandate to be struck down even though the law in Raich (and the laws in previous cases) were not struck down. That is when they came up with the “activity/inactivity distinction.”
But the activity/inactivity distinction is no more legally valid than an odd-number-bill/even-number-bill distinction (where one can distinguish this case because the bill number in question ends with an odd number, whereas the bill in the previous case ends in an even number).
Why is this? Because the activity/inactivity distinction does not appear anywhere in the Constitution (just like the odd-number/even-number distinction does not appear in the Constitution). “Activity” and “inactivity” simply don’t appear. The word “commerce” appears (which some people seem to think means “activity”), but as I said above, the court has already ruled that no commerce is required in the context of a broad regulatory scheme (due to the N&P clause). The N&P clause does not have a “commerce” requirement.
In fact, this was obvious even before the court ruled as such: the necessary and proper clause simply does not read
“all laws necessary and proper, unless they involve inactivity”
or
“all laws necessary and proper, unless we are talking about a provision that doesn’t regulate commerce, in which case such a law is invalid even if it is necessary and proper”
or any number of possible phrases that the anti-mandate folks so dearly wish the Constitution said. Jon Shields(Quote)
JHW says:
I think the the advocates of the inactivity/activity distinction (I am not one) can avoid at least some of the difficulties here by arguing that, whatever the line is, the non-purchase of health insurance is outside it.
The basic logic behind this approach is intuitively powerful: it’s one thing for the government to impose duties to act relative to certain activities (like driving) or certain statuses and relationships (like being a parent or an employer), but it’s quite different for the government to impose a duty to act on people simply for existing.
The greater difficulty with applying the distinction, it seems to me, is the framing ambiguities that will occur in real-world policy contexts, inevitably messier than “pure” hypotheticals: e.g., is the mandate about compelling people outside a given market to engage in commercial relationships against their will (“regulating inactivity”), or is it merely restricting the means by which people may engage in the activity of providing for their health care needs (“regulating activity”)? JHW(Quote)
D.O. says:
In a thread some time ago, Prof. Kerr pointed out that the law requires a person to take some affirmative steps if that person receives child pornography. In a sense, it is just a requirement on existence because “receiving” in the context of the law does not require any action at all.
By the way, as a closer-to-home hypothetical: health insurance for children usually comes through their parents. At some point, however, a young person can no longer be on their parents insurance. Suppose Congress says that whoever was on health insurance can not drop out completely. Would than mandate be OK for children previously on parents’ insurance? D.O.(Quote)
Joey 33 says:
This puts Justice Stevens’ formulation of a right to be left alone in Morales — which Justice Scalia refused to recognize — in a new light. Joey 33(Quote)
Hazel Meade says:
I think your example of the driver of a car failing to slow down or swerve is inapt.
A driver of a vehicle has taken all sort of positive actions that set him on the collision course with the old lady. Including, presumably, obtaining a driver’s license and registering the car. Surely those two things constitute an agreement not to run people over with it.
From a philosophical perspective, I think that the common law distinction between action and inaction is based on a basic moral intuition that people not be punished for events they did not cause.
Now, obviously that gets into all sorts of arguments about causality. However, few people argue that failing to rescue is the same as “causing” a death. And even fewer I think, would have the intuition that failing to pay for someone else’s medical treatment is equivalent to harming them. And that is what we are talking about.
My analogy that I’ve been using is based on the famous trolley cases. Suppose in Case A, you can push a button to divert a train heading for an individual standing on the track. In case B, you can push a button and divert the train INTO the persons path.
Now, is failing to push the button in A (inaction) equivalent to pushing the button in B (action)? And when IS failing to push the button in A punishable? It WOULD be punishable if your job was maintaining track safety and that is why you were standing there. But what if you’re just a passenger in the station who by sheer chance happens to be there?
I’d argue that the individual mandate IS imposing a punishment for failing to rescue on bystanders. It is designed to fund treatment for high risk and sick individuals at the expense of lower risk people. The argument that low risk individuals a free riders is a red herring. They need them in the system not to pay for their OWN healthcare, but to pay for the health care expenses of people whose expected health care expenses are much larger. So failing to buy insurance is failing to pay for other people’s healthcare.
Many liberals believe that health care is a human right and that people have a moral duty to provide it, by vitue of being alive. That is what this mandate imposes. It it legally enshrines an obligation to pay for other people’s health care upon the general populace. Hazel Meade(Quote)
captcrisis says:
“This is not logic. It is practical politics.” captcrisis(Quote)
Orin Kerr says:
Hazel,
The case cited does not involve a driver: It involves a passenger in a car driven by a chauffeur.
Also, I’m curious about the description of the mandate as being imposed “by virtue of being alive.” My recollection is that there is an income requirement: You need to buy insurance if you have enough income. If I’m right about that, I wonder if you could say that the “act” is whatever you did to generate that income? I’m not totally sure if that works, as I suppose you could generate income passively (a person who owns stock) instead of actively (through a job). But most of us earn income through work: If the mandate applies only to adults who work, does that work satisfy the act requirement? Why or why not? Orin Kerr(Quote)
Hazel Meade says:
Well, I’d say that the act has to be a proximate cause of someone else not getting health care. I’m not arguing the legal case here, I’m arguing the moral case.
Does having a job in some way give you a duty to pay for other people’s heathcare? Hazel Meade(Quote)
D.O. says:
But, of course: look under “taxes”. D.O.(Quote)
Skyler says:
I think you stand the action/inaction dichotomy on its head by saying that willfully running down a little old lady is to not act.
Acts do not depend on Newton’s laws. There is no inertia that compels someone to steer a car over an old lady. By driving forward you are acting by choosing a course. You are responsible for the course you choose and your choice is an act.
To claim that the act of running over a little old lady is actually a lack of action is absurd.
Your analogy fails just as your argument about inactivity does. If the government can compel you to buy broccoli or health insurance, then we are not a free people any longer.
[OK Comments: Skyler, I recognize that you have extremely deeply-felt political opinions, and that you have passionately disagreed with much (if not all) of what I have said about the legal issues surrounding the mandate. But I think you’re changing the hypothetical in order to criticize it. In the hypo, the driver is not “willfully running down” anything. The driver just realizes that his car is going to hit the old lady unless he acts. He faces a choice: Act and save her life, or don’t act and let her die. He decides not to act and let her die. You comment that if you’re the driver, and you let the lady die by doing nothing, “[y]ou are responsible for the course you choose and your choice is an act.” But that reasoning is equally applicable to the mandate: If you apply the common law test to the mandate, then I would think that the decision not to buy health insurance is taking the course of action of refusing to buy insurance. Now, of course, you don’t have to agree that the common law act standard is the relevant standard: You can say that the activity/inactivity standard should be different, so that taking the course of action of declining to be insured is not an act. It’s totally fine to use a different test. But that goes back to the point of the post: We need a definition of what is an “act” to know what the proposed distinction means. That’s my sense, at least.] Skyler(Quote)
MJW says:
I realize I’m probably getting myself in deeper than I bargained for, but I don’t see the what the major difficulty is. “Activity” is essentially something that could be described by an outside observer specifying what is being done, not what is not being done. To accommodate Wickard v. Filburn and Gonzales v. Raich, it must include producing a fungible commodity that would, if commercially produced, constitute interstate commerce. I exclude merely buying a legal product for personal use as commerce activity, but include buying or otherwise obtaining illegal products that could arguably affect interstate commerce. Of course, it includes the usual “interfering with the channels of interstate commerce,” etc.
Examples:
Wickard: Growing wheat.
Raich: Growing marijuana.
Heart of Atlanta: Operating a hotel.
Note in Heart of Atlanta the activity that allows regulation under the commerce clause isn’t refusing to lodge black guests; it’s operating a hotel.
As to the child pornography example, that’s simply an example of obtaining an illegal product. The reasonable assumption is that if you have such material, you purposely obtained it. The supposed required activity is simply a method of establishing it wasn’t purposely obtained.
While I think (at least for now) that my distinction between activity and inactivity is pretty clear, Orin Kerr’s implicit requirement that there must be a simple, bright-line rule is asking a bit much. Or can we suppose that the Supreme Court has provided such clear guidance on other issues that on matters of law, District Courts simply apply a mechanical rule and Circuit Courts always reach the same conclusion? MJW(Quote)
PubliusFL says:
1) I think the legal duty not to leave the scene of an accident is created because there is a presumption that the actions of the person with the duty had something to do with causing the accident. As far as I know, the duty applies only to drivers involved in an accident, not to bystanders who just happened to be standing next to where an accident occurs.
2) Let me tell you about the birds and the bees....
6) How is employing someone not an affirmative action? PubliusFL(Quote)
David Schwartz says:
If the law requires you to buy health insurance if you can afford it, then earning enough money to meet the requirement presumably constitutes an agreement to acquire health insurance. Once you concede that a legal duty can turn inactivity into activity, the game is over. One can always find a previous activity that creates an alternative to the subsequent inactivity and that can be argued to commit one to the legal duty. David Schwartz(Quote)
Marc DeGirolami says:
In case it might be of interest, I have a post on the action/inaction distinction with discussion of omissions in criminal law here: http://mirrorofjustice.blogs.com/mirrorofjustice/2011/05/action-inaction-and-control.html
I try to explain the nature of the distinction not so much as a hard categorical line, but on the basis of different degrees of control. I am not certain whether, or how, this explanation would apply in the Commerce Clause context. Marc DeGirolami(Quote)
Skyler says:
Orin, I understand the point you’re trying to make, but what I’m saying is that your hypo fails.
In running down the old lady, he acts to put his car in the same location as the lady. This is an act. It is not inaction.
If I decide to thrust my hand out in front of me, that is an act. If, before I do so, your head gets to the same place I had already decided I would move my hand to, it doesn’t become an “inact” if I decide to continue to act to thrust my hand out (assuming I have time to react and decide).
The same is true of the car. If I choose to drive down the street, excpecting no one to be there, that is an act. If a little old lady appears on the road, with enough time for me to easily avoid her, then I am still acting if I run her over. You can’t say that just because you had already planned to drive where she was that her appearance suddenly negates your ability to decide to change how you act.
I do feel strongly about instituting marxist ideologies, but that is beside the point that your analogy is flawed. Skyler(Quote)
Rodger Lodger says:
I recall decades ago seeing an attempted demolition of action/inaction by arguing failure to brake one’s car is arguably inaction, yet gives rise to tort liability. I thought then and thought now there’s a huge act, namely, putting the car in motion (cf. supra, registering the car).
But this thread persuades me that the Supreme Court will not find the action/inaction a killer argument for either side. I am more interested in destroying the government’s argument that those who don’t purchase health care insurance will be free riders by eventually using the emergency rooms, by federal law open to all comers without charge, if inability to pay. I say that means whatever Congress decides to enact, such as free health food markets for the indigent, could set up a constitutional power to require those with money to buy health food. In short, Congress should not be able to bootstrap itself into requiring, uh, action. Rodger Lodger(Quote)
af says:
Terrific post, Orin.
It’s also important to keep in mind that the “activity/inactivity” distinction originates in the Supreme Court’s use of the phrase “economic activity” in Lopez and Morrison. In those cases the Supreme Court was not thinking about any “activity/inactivity” distinction at all; the distinction it was drawing was between economic and non-economic activity. The whole debate arises from taking the Supreme Court’s phrase out of context. af(Quote)
Joe says:
so, in the beginning of the first semester, students are more advanced than the likes of Randy Barnett, who (with a sense of disdain worthy of Darcy before Elizabeth Bennett tames him) try to say how so “obvious” it is and all to make this distinction.
quite different for the government to impose a duty to act on people simply for existing
we are not brains in jars though ... seriously, the concern of some is that there is no way to avoid the regulation. This is reality and I think it useful to live in it. You can’t avoid regulation and stuff you don’t want to do. If you go to the store, you have to risk associating with people of a different race. Even the Amish has to deal with the outside world and its regulations.
Part of this is being part of a society where you can have an obligation to do a small part in the regulation of interstate commerce. We are “active” all the time and part of this “activity” is being part of a regulatory scheme such as this. There is more of this sort of thing now, but it was always such in some fashion. Joe(Quote)
Wayne Jarvis says:
But long before you put on cruise control: is buying a car economic activity?
Can you come up with some actual bona fide commerce clause examples where the activity/inactivity distinction is unclear? When you remove question from its context you are left with a bunch of what-is-the-sound-of-one-hand-clapping-style navel gazing. Who cares? (Answer: law professors.)
Is “taking your car off cruise control” an activity is pretty damn irrelevant to the question “what constitutes economic activity”? Wayne Jarvis(Quote)
Brett Bellmore says:
Yeah, and it will never stop being a good idea to turn it around and sail it back to port. Or, if that’s not feasible, sink it where it is before it sails further.
I don’t particularly expect the legal arguments against the mandate to prevail, but that’s not because they aren’t sound arguments. It’s because the judiciary won’t CARE that they’re sound arguments. All the judiciary will care about is that somebody is proposing to set a limit to the power of the people who nominate and confirm them... Brett Bellmore(Quote)
Greg says:
This is a fantastic post. This is exactly what I was thinking when Adler posted yesterday. Acts/omissions, activity/inactivity has a long legal and philosophical history, and it’s hardly a clear one. Greg(Quote)
cecil kirksey says:
Again Prof Kerr has tried to call attention to the “activity” issue regarding the mandate and penalty. Firstly as OK alluded to the mandate applies only to those with wage income. This implies that the person has a job and has elected not to provide for their or their family’s health insurance.
The penalty is only applied to income tax refunds. Certainly Congress has the power to define any tax deduction as positive or negative (penalty) without raising any constitutional issues.
I believe this issue will not be decided by the CC exclusively but by the taxing power of Congress. Specifically a tax penalty. cecil kirksey(Quote)
Joe says:
Can you come up with some actual bona fide commerce clause examples where the activity/inactivity distinction is unclear?
What do you have in mind? Where is a “clear” case of “inactivity”?
Not serving black people — activity (part of larger scheme of running hotel) or inactivity (specific non-action of not serving)?
Not buying health insurance — activity (earning income / making health choices / putting off paying health costs / using funds for something else) or inactivity (specific act of not buying)? Joe(Quote)
David Schwartz says:
Once you concede that a prior act that triggers a legal duty can make failure to perform the action that duty requires ‘activity’, the game is over. The mandate only kicks in if you earn money. The mandate creates a legal duty to buy health insurance if you earn enough money. Failure to buy health insurance after earning enough money to trigger the mandate is perfectly analogous to failing to swerve to avoid the lady after getting behind the wheel. David Schwartz(Quote)
Alan G. Kaufman says:
Thoughtful posts like this one are why I continue to read this blog. Well done. Alan G. Kaufman(Quote)
c. schultz says:
We are captains of our cars, whether we have hands on the steering wheel and feet on the pedals driving them or are being chaffeured by a hireling. To knowingly allow one’s car to hit another person is a wilful act punishable by both man’s and God’s law.
OTOH, most of us like to think we’re the captains of our own bodies and domains and think that decisions to not buy insurance, for our persons or property, to not enter into a particular market or engage in a specific transaction, is inherently a matter of self-responsibility and privilege that affects us only, in principle. Indirectly, you seem to be making the argument that existing economic realities and externalities make one’s decision to NOT do something for himself is tantamount to hurting others. I would disagree with the implicit logic. My wishing to pay as I go does not impact the entire country, or at least negatively, imo.
In fact, one could argue that if more people insisted on trying to take better care of themselves and insist on rendering payment in cash upon receiving medical services, then healthcare costs would go down. Not acting to buy health insurance would, in effect, escort little old ladies across the street to avoid your hypo driver (who belongs in therapy :)) c. schultz(Quote)
Tom T. says:
Slightly off-topic, but Moreland is from 1927 and seems unlikely to come out the same way today. Do we really think the passengers on a bus are liable when the driver hits someone? Tom T.(Quote)
Joe says:
My wishing to pay as I go does not impact the entire country, or at least negatively, imo.
We all [well, most] “wish” this but sometimes — in the sense of billions of dollars aggregate — it isn’t the case. You might “wish” to pay 100K medical bills if tragedy strikes, but wishes don’t make reality.
The whole point is that “affects us only” is false. A majority supports a national health policy because they accept just the opposite. This could be true even if only moral suasion and other lesser inducements than the law in question are constitutional. Joe(Quote)
AJ says:
Very well stated. I agree that the key is “economic activity”, though there also has to be a non-attenuated nexus. That is, being an “employee” and “earning income” is an entirely too attenuated link to justify mandating the purchase of anything (again this seems to be at the heart of Lopez/Morrison). For the mandate, this boils down to: are future health care purchases of a portion of the uninsured populace sufficient to rope in the entire class for regulation? Is the word “future” troubling? What is the appropriate percentage of the population making these future purchases? Over what interval of time can we apply such hypothetical pondering: one year, two years, one’s lifetime? Does this apply to over-the-counter medicines or does it need to apply to emergency room services, where the major cost-shifting is occurring? In general, government boot-strapping a hypothetical future purchase to justify regulation is quite troubling. It would seem that an actual purchase should be required. What role does the unexpected nature of emergency care play in the decision? Personally, I think the link is too attenuated, but this is obviously a subjective call. AJ(Quote)
Calderon says:
Instead of my normal lengthy posts, I’ll try to keep this one short. Lots of legal principles, and especially a number of constitutional principles, are vague standards that are fleshed out by case law over time. This is especially true for, such as, the Establishment Clause under the First Amendment, obscenity exception under the First Amendment, probable cause under the Fourth Amendment, reasonable suspicion (kind of, sort of, under the Fourth Amendment), the Eighth Amendment’s prohibition on cruel and unusual punishments, the Fifth/Fourteenth amendments on procedural due process, and so on and so forth. This same process is happening with the Second Amendment right now, as the Supreme Court laid down general principles that will be worked out in the courts for years to come. As a normative matter, we might all wish that these areas were governed by relatively clear rules, but descriptively they did not develop that way.
Thus, having the advocates of the action/inaction distinction lay out their theory in detail and how it applies to various hypotheticals is not necessary for the principle to be recognized. From reading Randy’s posts, I certainly get a sufficient idea of how the distinction is supposed to work. Do I know how it will apply to every situation? Of course not, but that’s equally true of most other existing constitutional principles. Calderon(Quote)
Wayne Jarvis says:
Not serving black people — activity (part of larger scheme of running hotel) or inactivity (specific non-action of not serving)?
Back it up: serving food for money is an activity. Not serving food for money is inactivity. The federal government can tell you how to serve food; it can’t tell you whether to serve food. The commerce clause does not authorize the federal government to force me to open a restaurant in my kitchen to passers-by. Or does it?
This really isn’t that hard. While there may be some gray areas, I haven’t heard a good example yet. Wayne Jarvis(Quote)
c. schultz says:
Won’t let me edit, correction:
“Indirectly, you seem to be making the argument that existing economic realities and externalities make one’s decision to NOT do something for himself tantamount to hurting others.”
May I add, hitting a specific person in real time is far different than supposedly harming general “others” somehow at some point in evaluating the relative consequences of acting, inaction, failure to act, etc.? Having just had a $2000 cat bite for which I paid out of pocket, let me say that I’ll be $10k richer by the end of the year if I’ve no more major med expenses, because insurance is too costly; just like college tuitions, premiums and healthcare costs keep going up because the system’s awash in impersonal money from the insurance companies, employers, government. If more of us paid with green instead of with insurance cards, more vigilant consumerism would kick in, just as parents are beginning to re-evaluate the relative worth of exorbitantly expensive college degrees and are shopping around for better value. It’s virtually impossible to nail down doctors’ and lab fees ahead of time. One just submits, and that ain’t right.
This government mandate just exaberates the progressive disease. Healthcare savings accounts would incentivize people to be better in charge of themselves– both physically and financially. c. schultz(Quote)
epluribus says:
David Schwartz says:
I agree that the the “mandate” (actually the minimum insurance requirement) applies only to taxpayers. Opponents like to overlook this. (Quibble: the taxpayer’s income need not be “earned” income, but any kind of taxable income. Receipt of income, which requires at least the affirmative acceptance of the income if not going out and affirmatively generating it through labor or investment, triggers the requirement.) Receipt of income is certainly “activity.” The consumption of healthcare is another “activity” that triggers the requirement. Everybody consumes healthcare–with certain very limited religious exceptions noted in the statute. But this is another argument. epluribus(Quote)
Katja says:
So, is saving money (from just letting interest accumulate to putting money in a 401(k) account) economic activity or economic inactivity? Katja(Quote)
Steve says:
Right. Or, if you want to employ a hook of the more traditional sort, anyone who travels on public roads or in interstate commerce has to buy health insurance (you might get hurt while doing so, after all). Or anyone who buys a product that has traveled in interstate commerce has to buy health insurance (you might get injured by that product, after all). These ideas scarcely sound reasonable to my ears, but they would certainly work around the proposed inactivity distinction.
Thinking of the mandate as “regulating inactivity” misses the point, in my view. The health care law regulates the health care and health insurance markets, both of which unquestionably qualify as interstate commerce. The mandate is one of many means employed by Congress towards the end of regulating those markets.
The relevant legal issues are: (1) is the means (the mandate) rationally adapted to the end (regulating the health care and health insurance markets); and (2) is the means (forcing someone to buy a product) a “proper” method of carrying out an enumerated power. The first question is a fairly issue for the government to win, unless a court believes that the mandate simply goes way too far and there are far less intrusive means of accomplishing the goal. The second is basically a substantive due process question, although I understand no one wants to admit that when they’re hoping to persuade Justice Scalia. It’s a difficult argument, because the government isn’t interfering with intimate matters and you’d basically have to argue for a Lochner-ish theory that the government can’t compel your economic decisions. But neither argument is patently frivolous. Steve(Quote)
Joe says:
Back it up: serving food for money is an activity. Not serving food for money is inactivity.
So, if a black person comes close, I stop serving food. I’m not serving food any more. At that instant. At a certain instant, I’m not buying insurance. Long term, sure, I’m actively running a business. Long term, I’m making loads of health related activities.
The federal government can tell you how to serve food; it can’t tell you whether to serve food. The commerce clause does not authorize the federal government to force me to open a restaurant in my kitchen to passers-by. Or does it?
“How” to serve in various instances includes “whether” to serve. As to the last point, it’s one of those hypos. What if we were talking about an 19th Century outpost. You have lots of extra food you would otherwise toss to the birds. To safeguard commerce with the local Indians, a law is passed to require sale of necessities for fair market value if it is shown you would otherwise dispose of it. I won’t say this is surely unconstitutional.
The burden in the ACA is not of the same caliber. It doesn’t require you to open your kitchen up, with problematic 3/4A implications. It requires spending extra money. The government does this all the time via taxation.
This really isn’t that hard. While there may be some gray areas, I haven’t heard a good example yet.
It isn’t but not in the way you think. Joe(Quote)
loki13 says:
First, I wanted to co-sign what Jon Shields wrote in the second post, as I will explain in a second.
But I wanted to highlight this passage. The entire problem is that something that seems so clear to you from Randy Barnett is unclear to many of us. And when Prof. Barnett is asked about it, he doesn’t provide any answers. So if it’s clear to you from his writings, perhaps you’d care to explain it to the rest of us, instead of simply saying it is clear?
And this gets to the heart of the matter. Of course new doctrines get stated by the Supreme Court and get interpreted and refined by lower courts. But the commerce clause is, for historical reasons, the greatest single source of Congress’ power to legislate. Prof. Barnett is proposing a new, non-textual “test” for the Commerce Clause. One that he will not explain. Most importantly, this is a commerce clause case that doesn’t have to do with the furthest reaches of Congress’ power to legislate (like endangered species, or medical marijuana, or the tens of thousands of laws that have, at best, a faint connection to commerce), but a comprehensive regulation of commerce.
In previous threads, I listed other examples of non-activity that no one would have an issue with that are regulated, and mandated. Each of these were cited as being “different” as having some sort of predicate condition– being a corporation, or choosing employment of a particular type, or making an agreement with others not to work, or, well, something. So already we are seeing how this sui generis test (we know inactivity when we see it) is becoming a problem, because no one will articulate what it is, except the PPACA is it.
Prof. Adler tried to examine other areas of the law where this comes up, but his post (as I quickly noted in my comment, and Prof. Kerr does at length in his post) does nothing more than show that this is, in fact, an incredibly difficult area of the law, and one that has been explored and debated for a long time in other contexts. Even his original post (acts of commission and acts of omission) noted, without irony, the difficulty.
And that gets to Jon Shield’s point. When all you have is a hammer, every problem seems like a nail. The problem is not that this is an impermissible exercise of the commerce clause + N&P. The problem is that a group of people have decided that they want to use the courts, instead of the ballot box, to permanently hamstring the legislature. This is the test case. As others (see Brett Bellmore) have noted, this isn’t about the PPACA. This is about the entire Federal Government. What cannot be achieved through persuasion will be achieved through the judiciary. And the great benefits achieved by the conservatives in the 70s, 80s, and 90s in constraining the judiciary will be swept away by hubris. loki13(Quote)
Arkady says:
Wittgenstein, Philosophical Investigations, para 621. Arkady(Quote)
c. schultz says:
Joe, evidently you believe healthcare is a positive right, and I don’t. But I do think having personal transportation is owed everyone in the country if they’re to work and take care of their families in our sprawling cities and countryside. I hope Congress compels you, if you earn an income over a certain amount, to not only purchase a vehicle, but to buy it from government-approved and bureaucratically regulated companies whose mandate is to average the costs of Lexuses, Priuses, KIAs and vespas over the pool of purchases so as to subsidize those who couldn’t otherwise afford luxury models on the backs of those buying more modest makes. All for the Common Good.
OK, I admit this isn’t the same, because at least in my example one actually gets a commodity (and one she can use) in exchange for having been forced to buy something and at compelled rates.
*but not if you’re a lovable union or cooperating corp, waivers and exceptions you you guys! c. schultz(Quote)
RandomEngineer says:
But isn’t that part of the broader argument, that the government in defending this initially in court was denying it was a tax, for political reasons? Of course courts could conclude otherwise despite the government’s line of reasoning, but does that often happen when the advocates for something affirmatively deny it? I’ve lost track of what arguments were made by the government in which district courts, but I think I’ve read the appellate briefs have been tightened up.
It seems that to me if one has to fall back to the tax argument (which granted is a good one as describe above) instead of soley the N&P/CC reasoning, that the “inactivity” complaint has some legs. RandomEngineer(Quote)
geTaylor says:
Dumb Question?
Why can’t the “free rider” problem (people, with resources, who want to be treated but don’t want to pay) be solved the way other businesses are required to solve it — civil court actions or criminal charges?
Can it be that the pass along costs are generated more by patient services compensated for at below price government programs (e.g., Medicaid and Medicare)? And how does another level of government fee schedules resolve the short falls created by the other two?
Why are the health care / health services industries being provided with a government mandate program to replace the court system that the rest of the country is required to rely on to collect debts from deadbeats? (organized crime loan sharks have alternate means for resolving debt disputes that does not rely on taxpayer subsidies)
As for the “Constitutionality” of it all — I can’t see how a system that can potentially order you to go into a life threatening situation cannot find a pretext to justify picking your pocket. geTaylor(Quote)
PubliusFL says:
I don’t see it. The duties discussed all relate to the natural consequences of or risks directly created by antecedent activities. Having children implies a duty to care for those children. Hiring employees implies a duty to supervise those employees. Inviting people onto your property implies a duty to warn them of dangers they will be subjected to as a direct result of accepting the invitation. Earning income implies a duty to ... buy health insurance? PubliusFL(Quote)
Joe says:
Joe, evidently you believe healthcare is a positive right, and I don’t.
How does this follow from what I said? Joe(Quote)
Ragebot says:
This is an issue I have raised a couple of times and never seen a good response to.
While I previously gave an example using cars I like your food example better.
There are lots of peeps who are hungry, but I do not think anyone would seriously argue that Sardis would have to provide meals to any hungry person who walks in the door. On the other hand hospitals are required to provide health care to anyone who walks in the door. Doctors are required to treat peeps for lower than market rate prices if the doctors engage in normal activities (sorry about using the word activities). This is the result of a govt mandate that basically says if you provide health care to anyone then you must provide it to everyone.
What would happen if health care were rationed by cost the same way Sardis rations its food? The argument that we are all consumers of healthcare would fail. The reason we are all consumers of healthcare is because the govt mandates healthcare providers give consumers healthcare without regard to ability to pay.
The activity/inactivity issue assumes not subsidizing health care for others is some type of activity that the govt can regulate. It also assumes the govt has the power to make everyone a consumer of healthcare by forcing healthcare providers to provide care to consumers knowing some consumers will never pay.
Maybe we should just go back to rationing health care by cost instead of shifting to rationing health care by time waiting to see a doctor. Ragebot(Quote)
Joe says:
This is the result of a govt mandate that basically says if you provide health care to anyone then you must provide it to everyone.
Isn’t this tied to federal funding of hospitals? Also, they aren’t required to “provide health care” full stop. They are required to stabilize people. Provide emergency care. I reckon this might be compared to public schools being required to giving starving poor children a hot meal in return for federal funding. That is a better comparison than Sardis.
[edit: the requirement to provide certain emergency care also was developed as a rule of state law] Joe(Quote)
Katja says:
In this particular case, the specific free rider problem is that people will simply wait until they need health care, then purchase health insurance, then they’ll cancel it afterwards. That’s not easily handled by other means.
Even if you designed a way to prohibit that (say, locking people out of the system for N years if they leave it), civil action cannot realistically hope to recover costs in the modern healthcare world. Treatments tend to be vary between pretty affordable or bankrupt you (the latter in pretty much every case that requires a hospital admission and/or surgery); in the former case, you’ll easily pay it out of pocket, in the latter case, you can’t squeeze water out of a stone.
Criminal charges, of course, face similar constitutional challenges as the financial penalty imposed under the current implementation of the individual mandate. Katja(Quote)
Law Clerk says:
In my general view, this discussion about whether the activity-inactivity distinction is sufficiently “clear” seems to be at least partially representative of the classic “level of generality” problem in law (and everything else). At what level of generality do you define the relevant conduct that you’re trying to decide is activity or inactivity?
Suppose you define the relevant conduct at a more granular level of generality. Take the already-mentioned example of a restaurant owner not serving food to a black person. The conduct as defined at a high level of generality is “running a restaurant for non-black diners.” The conduct as defined at a low level of generality is “not serving a black person food.” Is the former activity and the latter inactivity? What if we define the conduct at a high level of generality as “not running a restaurant for black diners” and we define the conduct at a low level of generality as “serving food to any diner who is not black”? Now it looks as if the former is inactivity but the latter is activity. The problem to me seems to be that both are descriptively accurate of facts in the world. At a high level of generality, the owner is both running a restaurant for non-black diners and not running a restaurant for black diners. At a low level of generality, the owner is both serving food to any diner who is not black and not serving food to a black person.
This post is not meant to suggest that I think the activity-inactivity distinction is sufficiently clear or unclear. I write this to make the point that the level of generality we choose and which description prevails under which circumstances seem to be the antecedent questions to figuring out whether the activity-inactivity is sufficiently clear or unclear. Assuming that’s at least somewhat accurate, I’d be really interested on thoughts from all as to answers to these two questions.
(Unfortunately, my intuition is that the choice between a very granular level of generality and a broader level of generality will tend to turn on more fundamental, intractable disagreements about separation of powers and the roles of government and the judiciary.) Law Clerk(Quote)
rb1971 says:
Owners, not passengers. Or why do you think I try to step in front of every Coca Cola truck I see? rb1971(Quote)
OrenWithAnE says:
Yes, one certainly does avoid difficult questions by declining to articulate a analytic framework in favor of merely announcing the conclusion.
As I recall, the IRS mandates that individuals earning such gains report them.
And, of course, mere possession of a prohibited item is sufficient for a criminal conviction. As I recall, there was a case about one of the ‘bath salt’ products in which an individual was convicted for possession despite having purchased the contraband while it was legal (and having done nothing when the legislature subsequently criminalized). I’ll try to dig up the cite.
I think Reagan was the one that asserted that when he signed EMTALA back in 1986.
Talk about re-waging an old battle ... OrenWithAnE(Quote)
josh says:
Great post.
Although I do have to quibble with the hypo about the driver. Even though I disagree entirely with Hazel Meade on the merits, she correctly points out that the hypo is (at least) a modification of the Trolley Problem (http://en.wikipedia.org/wiki/Trolley_problem).
Ah, law school ... josh(Quote)
Skyler says:
No, to run the little old lady over in this badly used hypothetical, you have to continue to act. Running her over is in no way possible to be considered “inaction” if there is time to avoid doing so. This is a quite insane use of the word inaction. It is orwellian. Skyler(Quote)
Floridan says:
I find this similar to the mandate, in my municipality, that all property owners must contract with a private company (from a list of companies)for residential garbage collection.
This is required whether or not I generate any garbage or have an alternate method of disposal such as taking it to the dump myself. To my knowledge, everyone pays the same, no matter the amount of residential garbage generated. No real action is required on my part — everyone must choose and pay a company to have their garbage collected.
Is my city government imposing a mandate on activity (generating garbage) for some and yet on inactivity (not generating garbage) for a few?
Although not within the scope of this argument, it seems, I would say it is imposing a mandate on statistically probable activity. Just as it is unlikely that anyone will not generate some garage, so it is unlikely that anyone will not, at some point, need health care. Floridan(Quote)
Sarcastro says:
Brett Bellmore is right — the flaw isn’t with his arguments, it’s with our very republic itself! Sarcastro(Quote)
Wayne Jarvis says:
This is bogus head fake. Whether the restaurant went out of business would be a question of fact to be decided by a fact finder. Under your hypo, the finder of fact would almost certainly conclude that the restaurant owner was at all points operating a restaurant and therefore cannot exclude customers based on race. But that doesn’t address the question whether the federal government can force me to open a restaurant under its commerce powers.
I’m still waiting for a good example. Wayne Jarvis(Quote)
geTaylor says:
You mean even if we allow the health insurance industry to behave like the car insurance industry? That seems to work pretty well.
And don’t the pushers of the comprehensive-health-care-reform use the example of mandatory car insurance to support their case? geTaylor(Quote)
Wayne Jarvis says:
Exactly! Your municipality enjoy a general police power that the federal government does not possess. Wayne Jarvis(Quote)
Wayne Jarvis says:
Exactly! Your municipality enjoy a general police power that the federal government does not possess. Wayne Jarvis(Quote)
Mithras says:
Others have brought up the idea that the anti-mandate people are conflating a due process claim with a commerce clause argument, so let me ask this. For those who believe the activity/inactivity distinction is clear, do you think:
1. The Commerce Clause only regulates activity, not inactivity, or
2. The Constitution generally forbids the government to make laws that create penalties for inactivity unless the person being penalized has engaged in activity at another time that makes them culpable? Mithras(Quote)
Grover Gardner says:
It’s not that health care is a “right.” It’s a necessity, in the same way that public transportation is a necessity. A workforce without transportation couldn’t accomplish much, could it? By the same token, a nation of sick people wouldn’t be very productive. Grover Gardner(Quote)
Joe says:
This is bogus head fake.
i.e. you disagree with it, so you have to challenge my motives?
Whether the restaurant went out of business would be a question of fact to be decided by a fact finder.
questions of fact would arise in most scenarios one would toss out
Under your hypo, the finder of fact would almost certainly conclude that the restaurant owner was at all points operating a restaurant and therefore cannot exclude customers based on race.
So a single factor would not be enough, they would look at his actions as a whole. Same with not buying insurance. The legitimate area of regulation is the whole — which includes various actions, such as earning money and making various health related choices.
But that doesn’t address the question whether the federal government can force me to open a restaurant under its commerce powers.
Again, that is a general question, and I’m concerned with the specific “activity” v. “inactivity” question here. I gave you an example of a possible narrowly tailored law where you would have to sell food under the Commerce Clause. You tossed in an unnecessary “home kitchen” complication, but whatever.
I’m still waiting for a good example
I have yet to seen an “inactivity” that is merely just that. Joe(Quote)
Ben P says:
Waiting for an example to fit your strawman? I don’t know why anyone would answer that.
This was discussed at length in the previous thread. Regardless of whether the government can do something so silly as compel you to open a restaurant, if the government has a restaurant (or a private party has a restaurant) the government can almost certainly compel you to go to work under anti-strike laws. There’s some question about individuals, but the law certainly allows for individual sanctions, and courts were not receptive to a 13th amendment argument. Ben P(Quote)
josh says:
Not only would it not be very productive, it would be expensive for the non-sick. I don’t care how much opponents try to cast this as an issue of undeserving entitlements. Cleaning up after dead or severely sick people is ‘spensive. Plus, touching them is icky gross. josh(Quote)
mark says:
This post is exactly why I commented on the original post by Professor Adler that he should leave out the references to the common law. Those arguments in his post that focused strictly on the role of activity in Constitutional cases were much stronger. This is one of those advocacy points — it’s not about all the arguments in your favor, it’s about the best ones and merely decent ones that get your argument sidetracked are disastrous for advocacy. Less is more. mark(Quote)
Mithras says:
I agree, but it’s not really relevant for the constitutional law analysis. We’re talking about the scope of the government’s legal power to regulate in a certain area. Whether or not the regulation is wise or effective is almost entirely a political question. Mithras(Quote)
No Theory of Jurisprudence says:
Huh? An agreement with whom? Are you suggesting that people who drive unregistered cars without a license have no duty to avoid killing people with their cars, by reason that they have never agreed to the same?
People who are mandated to purchase health care have also engaged in a lot of activities. Therefore I’m curious what your point is. No Theory of Jurisprudence(Quote)
Ragebot says:
The problem with the productivity argument is that most of the productive people have access to healthcare; it is the unproductive people who have to use subsidized health care. If you are really worried about cleaning up the mess maybe we could make touching the icky gross bodies (and cleaning them up as well) a requirement of subsidized healthcare. Ragebot(Quote)
John says:
Evdently steering north by northwest is action and steering north by northeast is inaction. John(Quote)
josh says:
I dont disagree. Just chiming in on the debate about health care as “a right.” josh(Quote)
scattergood says:
This is untrue. The penalty applies to ALL INCOME. And it applies to your total tax bill and not your income tax refund.
But hey, why let a few facts get in the way of your point. scattergood(Quote)
cecil kirksey says:
To RandomEngineer:
The “penalty” is not called a tax because it really is a “negative deduction”. If the Congress does away with a particular tax deduction is that a tax increase? What about those taxpayers who could not benefit from the tax deduction? No change for them. The “negative deduction” is the same. cecil kirksey(Quote)
AJ says:
If you are providing a commercial accommodation to the public (be it a restaurant, hotel, consultant service, or retail store), then this constitutes economic activity, as legally established by licensing, tax, and any number of regulatory requirements that you will certify to follow. Decomposition and alternate views do not seem to blur the fact that commercial activity is taking place. It’s either legally a hotel offering services to the public or not. Certainly one can play the game of saying the hotel is closed when a black person attempts to rent a room, but that charade will only work for so long. Legal precedent will quickly convince you that you need to choose private or public, not both.
The same goes for the consumer side of the ledger. If I search the internet to research buying a clothes dryer, drive to the store to talk with salesmen, and put aside extra money for the purchase, these are all activities and to some degree they can all be considered economic activities (paying for internet, fueling my vehicle, and managing my checking/saving accounts), but with regards to the clothes dryer, I am economically inactive until I sign the contract to make the purchase. As I voluntarily make the purchase, I can be voluntarily subject to government’s regulatory reach regarding the product (only).
This is where I see our thinking going. By example: The government wants to regulate energy use because it’s a huge piece of our national economy. It wants more people to use high-efficiency washers and dryers. Since everyone owns clothes and must keep those clothes clean and since most people use electric appliances to do this, this justifies a government mandate for everyone to buy a high-efficiency clothes dryer. Many people will not object because they already have one; some will receive a subsidy and not object; but a certain minority will be muscled into buying a product that they have voluntarily determined that they cannot afford. Is owning clothes or purchasing electricity a sufficient economic nexus to warrant the mandate? I would hope not. AJ(Quote)
PubliusFL says:
Sure, they would look at the situation as a whole to see whether the refusal to serve certain people is really inactivity or part of a broader course of commercial activity. Which is similar to the “level of generalization” point that Law Clerk made. But surely the appropriate level of generalization for the commerce clause cannot be “we will look at your life as a whole, and if you earn money, anything else you do or fail to do is interstate commerce.” PubliusFL(Quote)
Adam says:
I think this just highlight’s Prof. Kerr’s point. Once you change the frame of reference — in this point to consider when you started driving rather than just when you saw the old lady and in the mandate case to when you consume health care rather than when you decide whether to buy insurance — changes the appearance of “action.” Adam(Quote)
Joe says:
But surely the appropriate level of generalization for the commerce clause cannot be “we will look at your life as a whole, and if you earn money, anything else you do or fail to do is interstate commerce.”
This isn’t the claim. The claim is that the means used to regulate interstate commerce (the health market) can legitimately include the insurance requirement here and that one reason it is legitimate is that those “actively” affecting it in various respects are the ones being so regulated. This is not the same thing as saying if I earn money, me chewing gum is “interstate commerce.” Joe(Quote)
Adam says:
And in the case of the mandate it’s consuming health care.
How about whether choosing not to buy health insurance is action? Or consuming health care without buying health insurance? Or earning a particular income without buying health insurance?
Or as I said on a prior thread, hiring a new employee without checking his immigration status? The hiring is activity, but if I narrow the frame of reference the not checking is arguably inaction.
How about not buying wheat on the open market (because I’ve grown my own)? How about not providing hard hats for my construction employees (or other OSHA-required activities)? Adam(Quote)
Joe (not that one) says:
Couple of points:
1.) Anti-mandate folks are being way too cavalier about dismissing the point that you have to earn an income to be covered by the mandate. This isn’t some totally unrelated act. Congress has set up a pretty comprehensive scheme whereby the vast majority of non-elderly in the country receive (subsidized) insurance through their employers. Under PPACA, most non-small-business employers are then required to provide it. Even if you are buying the whole “activity-inactivity” distinction (more on that below), I think there is a pretty convincing argument that if Congress says that employers have to provide insurance for employees, and they impose a comprehensive subsidy regime along with that mandate, it is certainly regulating “activity” to say that if an individual chooses to place themselves within that regime by accepting employment, they must purchase the offered insurance (or an equivalent).
2.) The entire discussion of whether the activity/inactivity distinction is even workable misses the point. The whole reason that Barnett and Ilya et al. suggest that it should be imposed is that, to paraphrase, without it Congress could do “anything” and there is “no limit” to the Commerce Clause. Yet as I’ve pointed out repeatedly before, they’ve never, ever shown why this is the case. Put simply, “Congress could make you purchase broccoli” doesn’t explain why “Congress could make you eat broccoli” or “Congress could make you carry a firearm at all times for personal protection” would be authorized under the Commerce Clause. Joe (not that one)(Quote)
Hazel Meade says:
Failure to buy health insurance does not necessarily lead to harm to others. It is a statistical matter.
Under the PPACA, most of the people who would otherwise NOT buy health insurance are going to be paying, on average, much more in insurance premiums than they consume in health care dollars. This is part of the explicit design of the plan. The lower risk (lower expected cost, statistically speaking) people must be forced to pay inflated premiums so as to cover the higher-than average costs of those with chronic or pre-existing conditions, or high risks of disease, since the insurance companies are forbidden from charging those people more.
Statistically speaking, then not buying health insurance isn’t free riding. In the aggregate the class of people being forced to buy insurance are being forced to SUBSIDIZE other people’s health care, not pay for their own.
Now if we let those people buy a minimal high-deductible plan, priced according to individual risk, then you could make the argument that they are only paying for their OWN health care. But the PPACA doesn’t do that, intentionally because lawmakers KNEW that lower risk individuals HAD to be forced to subsidize higher risk ones, or else the insurance companies would go bankrupt, or the premiums for high risk people would be prohibitively high.
It is inherent in the goal of “universal” coverage. If you are going to cover health care costs for everyone, and not charge anyone extra for it, then you are going to have to charge some people more than is justified by their known (and calculable) risk of illness or injury.
Not buying health insurance for those people is not necessarily a decision to impose costs on others. It may simply be a rational, optimal, economic choice given the insurance rates. You can pretty much prove it statistically. If the people being forced to buy insurance weren’t paying much more into the system than they are consuming, then why would the insurance companies go broke if they aren’t forced to buy? Hazel Meade(Quote)
JRC says:
I’m not up to speed on any of this, but I would say no because the law is not regulating the earning of income but rather the purchase of insurance. The activity here is wholly unrelated to the purchase requirement. If earning income suffices, then it would suffice to require anything.
I would also agree with Skyler that the hypo is a poor one. Irrespective of whether the car is on cruise control, in order to drive straight forward you have to actively drive straight forward. It’s difficult to see how you can label this as inaction. The driver is either actively driving forward at the same speed toward the old woman or he is actively braking or swerving. I fail to see how driving a vehicle could be labeled as inactivity. JRC(Quote)
Adam says:
Wait, you mean this is about Rehabilitating Lochner?? Adam(Quote)
Grover Gardner says:
Really? I could name several very productive people of my acquaintance who can’t afford to get sick. But perhaps your definition of “productive” is different from mine. Grover Gardner(Quote)
Joe (not that one) says:
The activity here is wholly unrelated to the purchase requirement.
To repeat, this just isn’t true. Congress has told all non-small-businesses that they have to offer insurance for their employees. They have further said that these employers will get tax breaks for this insurance. How on earth is it “wholly unrelated” to then tell individuals that if they choose to accept employment, they must purchase the offered and subsidized insurance, or an equivalent? Joe (not that one)(Quote)
Adam says:
You highlight what’s so strange about the argument that mandating a commercial relationship is in End to All Freedom. There is no dispute that state and perhaps local governments can impose such mandates, so I guess we are already non-free. Adam(Quote)
Hazel Meade says:
Ok. But what about having a job or making money creates a positive duty to buy health insurance?
Leaving aside, for the moment, the issue of whether your actual risk of injury and the expected cost thereof justifies the premiums you would be paying (Is the coverage actually worth the price?), in the driving example, the prior actions of the individual set up the situation where the old lady is placed in danger. It cleasrly falls under Kerr’s #5. You have created the danger.
What danger of not paying for your own healthcare is created by having a job? One would think that you would be MORE able to pay out of pocket if you are earning money than if you are not.
And this is consistent with thereality that the bill is INTENDED to subsidize treatment for poorer or riskier people. It’s NOT INTENDED to make people pay for their own health care expenses. If it were, it would not need the pre-existing conditions exclusion, or the ban on risk based pricing, or the “mandatory minimum” of comprehensive coverage, or many of the other provisions which are essentially designed to make lower risk people pay way more in insurance prices than is justified by their expected health care costs.
It’s not the uninsured in general who are placing the general population at risk of harm. It is the [poor and the people with chronic or pre-existing conditions, or high genetic risk factors. They are the one’s whose insurance costs are being shofted to others. In the aggreegate, low risk people who don’t by insurance are just realizing that it’s cheaper to pay out of pocket. Or at best, carry very minimal catestropic coverage (which would be forbidden by the bill). Hazel Meade(Quote)
Adam says:
There is a reason I said consuming health care.
As to the rest of your point, you are confusing the standards for tort liability, which Prof. Kerr refers to as an analogy for why telling action from inaction is hard, with the extent of Congress’s Commerce Clause power.
Congress’s ability to regulate commerce is no coterminous with your liability in tort, and Congress need not find that you have a positive duty under tort principles to buy health insurance. Adam(Quote)
JRC says:
Okay, but the mandate is not limited to employees is it? In other words, it’s not only those who “choose to accept employment” that are required to purchase insurance. JRC(Quote)
Hazel Meade says:
It is not analagous. Getting behind the wheel has a direct relationship to creating the conditions under which the old lady might be harmed.
Earning money in no way makes you more likely to use health care resources and not be able to pay for them. In fact, having a job makes you LESS likely to impose costs on others, since you’ll be more able to pay out of pocket.
Fail. Hazel Meade(Quote)
Hazel Meade says:
So your suggestion is that the Commerce clause gives Congress the power to use ANY activity, regardless of whether it is related to the commerce in question, as the activity triggering a mandatory action?
Well then, why not make a requirement that anyone who goes to church must buy a car? Would that be constitutional?
Or say that anyone who owns a gun must participate in morning calisthenics?
Shouldn’t the triggering activity have, you know, SOME relationship, to the mandate that is being imposed? Hazel Meade(Quote)
Joe (not that one) says:
Okay, but the mandate is not limited to employees is it? In other words, it’s not only those who “choose to accept employment” that are required to purchase insurance.
Are you referring to the very tiny subset of non-elderly who have an income that is generated by other than earned means? Joe (not that one)(Quote)
OrenWithAnE says:
Going to church is protected and so mandates triggered by the exercise of a protected activity are judged on much stricter grounds that those impinging on a general liberty interest (strict scrutiny versus rational basis). OrenWithAnE(Quote)
Carl The EconGuy says:
I find Orin’s post interesting as illuminating common law doctrine, but ultimately unpersuasive with respect to the Commerce Clause. The inactivity argument was never brought up to clear up common law ambiguities, it is an attempt to draw a line in the sand for SCOTUS to apply to CC cases. If the courts do not uphold the inactivity argument, then CC is an irrelevant clause in the Constitution — there is nothing Congress cannot do. It can force you to sell your labor, if it should want to. It can force you to buy any government monopoly produced good or service it wants. It opens the door for complete socialization of, say, the airways, as is the case in Britain, for example. Not buying a government produced TV broadcast can be made illegal. Reading the CC this broadly leaves the original text meaningless — and that is not good law. Carl The EconGuy(Quote)
No Theory of Jurisprudence says:
Yes, if doing so were necessary and proper in order to regulate commerce, and if there were no 1st Amendment. Proponents of the activity/inactivity distinction would seemingly have no problem with your hypothetical, as it clearly regulates an activity. Your example is Hearts of Atlantis (once you decide to sell food, Congress can tell you who you must sell to).
Why? Anyways, it does: the relationship is that people with income have a responsibility to subsidize the health care of people who don’t, to cure a free-rider problem affecting millions of American citizens. No Theory of Jurisprudence(Quote)
JRC says:
Not everyone who earns income is an employee. Are self-employed exempt? JRC(Quote)
Hazel Meade says:
In the aggregate, the bill forces low-risk individuals to subsidize treatment for high-risk ones. If all of them stopped buying insurance and put the money in a savings account instead, it would, in the aggregate, impose no costs on society. Hazel Meade(Quote)
Joe (not that one) says:
If the courts do not uphold the inactivity argument, then CC is an irrelevant clause in the Constitution — there is nothing Congress cannot do.
And there it is. Please explain. It is not intuitive to me why the proposition that Congress can impose a purchase mandate for a particular product implies that its Commerce Clause power is limitless, and would encompass even non-purchase mandates or non-mandates. Professor Barnett and Ilya keep on saying that it would, but they’ve never offered a sufficient (to me, at least) explanation. Joe (not that one)(Quote)
Hazel Meade says:
Whose free rider problem? The people with the income, or the people without it?
You’re essentially begging the question now, you know. You’re essentially saying the health care is a right and that people who can afford it are morally obliged to pay for others treatment. Which validates my entire argument at the top of this thread. The point of the bill is to force people to subsidize other people’s health care, as a positive duty entailed by a right to healthcare. NOT as a means of paying for one’s own medical expenses. Hazel Meade(Quote)
Joe (not that one) says:
Not everyone who earns income is an employee. Are self-employed exempt?
No, but they are also required to provide (subsidized) insurance for their employees once they reach a certain size. In other words, they are participating in the system set up where all employers of a certain size are required to provide insurance and receive tax breaks for it, and in return for that requirement, people who choose to work for them (generally) are required to purchase it. Joe (not that one)(Quote)
Mithras says:
I’ll ask the anti-mandate people once again, is there a constitutional right to be free from burdensome government regulation of inactivity, or is it just that the Commerce Clause can’t regulate inactivity? Mithras(Quote)
Jt says:
I think you are totally missing the point. The question is not one if activity/inactivity. It is one of are you performing an act of Commerce under the Commerce clause? Sitting around not buying things may be an act in the sense of your brain cobsuders and then rejects making s purchase, but not buying stuff on its face us
not commerce. In fact, I feel the government concedes this point — they argue that everyone eventually purchases healthcare and thus that is enough of a Commerce nexus. The real question is the suppositon of future Commerce acts enough of a Nexus for Federal regulation. Could the Federal government make me pay for a loaf of bread today just because I’ll probably buy one in the future? Jt(Quote)
AJ says:
But didn’t this line of argument fail in Lopez? Just because Lopez purchased the gun, it did not provide sufficient link to the commerce clause to make the regulation appropriate. Further, just because the gun’s presence at the school made local drug distribution more likely (and by aggregation, interstate drug laws more difficult to enforce), this also did not make the regulation a valid use of commerce clause power. With the insurance mandate, the activity is hypothetical purchases of future health care products and services. I use the word hypothetical because there is no requirement for an actual purchase to trigger the regulation. My question stands: what portion of the uninsured class must make relevant health care purchases in a year for the entire class to be regulated? AJ(Quote)
Hazel Meade says:
How about both?
I think the original meaning of the Commerce Clause has been stretched WAY beyond reasonable limits. If, under current interpretation, it allows congress to mandate purchase of a particular product as a condition of legal residence, then it sets up a deeper conflict with due process, and with the general history of common law throughout the western liberal tradition. Hazel Meade(Quote)
Hazel Meade says:
Excellent question. Problem is that a large portion of the uninsured class really doesn’t consume any health care resources, and statistically speaking, if they were all forced to buy insurance, they would be massively subsidizing others, in the aggregate. Which is in fact the goal of the bill. Hazel Meade(Quote)
No Theory of Jurisprudence says:
I don’t care who has the free rider problem, and I’m not sure what relevance that has to the constitutional issue in question.
I would like to be very clear about what I am saying, essentially or otherwise. I do not think health care is a right and that people who can afford it are morally obliged to pay for others’ treatment.
Now that we have that out of the way, what I am saying, essentially or otherwise, is that the Health Care and Health Insurance Industry are both national in scope, and involve in no small way interstate commerce. Congress imposed a regulation on the health care industry that they must provide health insurance to anyone who asks for it (which, in some ways, is similar to Hearts of Atlantis — once a person decides to sell insurance, or food, Congress can regulate the manner in which they do so). This creates a free-rider problem because people who cost the most in health insurance will simply refuse to purchase health care or insurance until they need expensive treatment. This would, by Congress’s estimation (I don’t know or care if it is correct, Congress is entitled to make incorrect estimations), affect interstate commerce, natch: it would destroy the Health Insurance and maybe the Health Care industries.
That might be the point of the bill. The point of the bill might have been to anger people like you. I don’t care what Congress intended when it passed the bill, and I’m not sure that is determinative of the Constitutional question presented. The real issue is whether the legislation is Constitutional, not whether Congress intended that it be so. In any event, Congress is certainly constitutionally authorized to pass laws requiring Group A to subsidize the health care of Group B, and can put people in Group A in prison for their refusal to do so. No Theory of Jurisprudence(Quote)
AJ says:
There might be both, but the SDP argument involves far more subjective analysis (is it a taking? Fundamental economic liberties, etc.) and will also be hamstrung by state mandates that are allowable b/c of a state’s general police powers. The better case is one of federalism/10A – the government’s power to mandate commerce is limited by a close tie to economic activity and a national regulatory scheme. AJ(Quote)
No Theory of Jurisprudence says:
Yes, but that has nothing to do with the activity/inactivity distinction (Lopez was involved in a commercial activity of purchasing a gun). The mandate might be overturned on the same grounds as Lopez, although I think that’s unlikely given the existence of legislative findings supporting the mandate in this case.
Might the answer be: Whatever percentage that can be asserted rationally? No Theory of Jurisprudence(Quote)
Adam says:
You mean like how there is a relationship between consuming health care and paying for that consumption with insurance?
Seriously, your continually divergent responses are strange. Adam(Quote)
Adam says:
Prof. Kerr’s point is that adopting an activity/inactivity distinction provides no line. Adam(Quote)
Joe Kowalski says:
The problem with this line of thinking is that health insurance isn’t just about subsidizing costs of high-risk sick people in the here an now, its about leveling out costs for everyone over a broader period of time. Eventually, unless one gets hit by a bus or dies instantly (or nearly so) in some other horrible, tragic, way at a young age, virtually everyone will become sufficiently sick or injured to require a large amount of health care before death. So right now I am healthy (and low risk), and I willingly contribute a substantial portion of my income to subsidize the costs of the sick, knowing full well that eventually I will be injured or sick (and become high-risk) and will need a large amount of care, with costs and timing I can’t predict, and at that point I will be subsidized by other lower risk people in the insurance plan.
You can’t look at low-risk and high-risk groups of people and pretend that they are static and unchanging pools that a person in one group won’t eventually be in the other. Joe Kowalski(Quote)
Anthony says:
While this is comparing state to federal law, can someone come up with a plausible distinction whereby the requirement to have automobile liability insurance is legal and the individual mandate is not? Anthony(Quote)
yankee says:
Massive overstatement. The problem here is that the expected value of the expenses for the low-risk has been artificially deflated by the fact that if they get into serious trouble, they’ll get care sufficient to stabilize them even though they can’t afford it. If our (temporarily) young and healthy 20somethings were going to be left to die on the hospital steps after they get smacked by a drunk driver, run over by a bus, or suffer a low-probability stroke, their health insurance purchase calculus would look very different. Once the PPACA gives them the ability to purchase coverage after they suffer injury or illness requiring ongoing treatment, the problem will be even worse. yankee(Quote)
Hazel Meade says:
That may be the case, but it undermines the argument that not purchasing insurance is simply a decision about how to pay for ONE’S OWN healthcare expenses. If the government believes that the Commerce Clause authorizes the government to force Group A to purchase a product so that they can subsidize the price of insurance for Group B, they should make that argument explicitly. Hazel Meade(Quote)
josh says:
So you’re saying it can abridge free speech, deprive you of a gun in your home, quarter soldiers, search and seize and deprive you of due process?!? Crap, I must have missed the day they taught law in law school. josh(Quote)
Ben P says:
Just to be clear.
You believe a hospital has an absolute right to let someone bleed out on the front steps unless they can adequate security or proof of ability to pay before being treated?
If that’s the case, I can accept that. It’s at least a consistent philosophical position with certain beliefs.
On the other hand, I’d like to see you actually try to convince anyone to allow that as a matter of policy.
If that’s not the case, you might need to re-evaluate what you actually think about positive rights. Ben P(Quote)
Adam says:
I’m pretty sure that a constitutional law (question pending, obviously) passed by Congress and signed by the president is fully consistent with due process and western liberal tradition. Adam(Quote)
MJW says:
I specifically excluded purchasing a legal product for personal use from the definition of “activity.” Otherwise, the reach of the Commerce Clause would be limitless. The government could tell you what to do with everything you bought — which is pretty much everything. MJW(Quote)
josh says:
Could you provide some cites or evidence for the multiple assertions in these sentences? josh(Quote)
Hazel Meade says:
The activity in question is supposed to be earning money. You’re just retreating to the claim that all uninsured people will eventually consume healthcare resources. In other words, as a condition of being alive. We’re back to the fact that no prior action has created a duty. Being born is not a volitional action. Hazel Meade(Quote)
No Theory of Jurisprudence says:
I agree, as I believe it is usually the case that if something is worth doing it is worth doing openly and honestly. However, there is no constitutional requirement that Congress make explicit arguments when it passes laws. No Theory of Jurisprudence(Quote)
Hazel Meade says:
That’s why you stick with the same insurance company and lock in a low rate early in life, and maintain your insurance coverage throughout.
At least, that’s how it ought to work, if it weren’t for the problems created by the employer based system, and the inability to carry insurance across state lines.
However, while people do become higher risk later in life, it’s just not true that there are no dividing lines. Lifestyle choices reduce your expected lifetime healthcare expenses. And for that matter, prohibiting risk-based pricing basically makes it impossible to benefit financially from them. Ypou’re going to be paying the same premiums whether your eat oatmeal and exercise or not. Hazel Meade(Quote)
No Theory of Jurisprudence says:
No, I do not believe a hospital has an absolute right to let someone bleed out on the front steps unless they can provide adequate security or proof of ability to pay before being treated. I think hospitals should help people who are bleeding on the front steps of hospitals. I also believe I have a moral responsibility to help someone who is bleeding in front of my house, even though I curiously have (EDIT) no legal responsibility to do so.
I would qualify what I said earlier to mean that I do not think the United States Government has an absolute moral obligation to provide health insurance to all of its citizens. I have no strong objections to its decision to do so, either. I probably also should have said health insurance rather than health care. I am rarely as careful with my verbiage as I should be, and I appreciate you pointing me right-ways. No Theory of Jurisprudence(Quote)
Hazel Meade says:
Well, there is a requirement that judges make honest decisions. In that case, the courts should reject the governments argument that the decision not to buy insurance is merely a choice about how to pay for one’s own healthcare expenses. Hazel Meade(Quote)
josh says:
No. It’s supposed to be consuming health care. josh(Quote)
Hazel Meade says:
http://aspe.hhs.gov/health/reports/05/uninsured-cps/index.htm
About 27% of the uninsured have incomes above 300% of the poverty line.
63% are under age 34. 57% Are childless.
79% are native US citizens.
In summary, the uninsured skew, young and single, people generally considered low risk. A significant percentage can afford to buy insurance but choose not to. Hazel Meade(Quote)
Hazel Meade says:
Please try to reread the thread, this is all stemming from Kerr’s original response which was asking whether having a job could be a positive action that imposes a duty. Hazel Meade(Quote)
PubliusFL says:
The point is that, even before the Bill of Rights was proposed, the Constitution was sold to the people as creating a government of limited powers. How can that be, if the Bill of Rights (and later amendments) is all that keeps the government from being one of unlimited powers?
I’m confused. Does the mandate apply to those who consume a certain amount of health care, or to those who earn a certain amount of income? PubliusFL(Quote)
Adam says:
Wait, your argument is that buying stuff is neither “activity” nor “commerce?” How? What is commerce to you then, if it isn’t buying stuff? Adam(Quote)
Adam says:
I don’t know where you got that earning money is “supposed” to be the action. I never said that and the government lawyer defending the case have never said that(although others have raised it in these comments as an alternate theory).
Everyone does consume health care (that’s not an assumption, it is fact with a vanishingly small number of exceptions), and the consumption of health care and health insurance are the regulated activities. Adam(Quote)
Adam says:
The fact that buying insurance is also paying for the health care of others in the pool does not mean that it isn’t also paying for one’s own health care expenses. Adam(Quote)
PubliusFL says:
PubliusFL(Quote)
josh says:
Good conclusory assertions, but nothing u cite supports your prior assertion that “a large portion of the uninsured class really doesn’t consume any health care resources.” More importantly, it definitely doesn’t show they WON’T consume health care. Because of course they will.
On the other hand, if the uninsured you refer to who can but won’t buy insurance b/c they don’t want to subsidize the rest want a waiver in exchange for a promise to go Galt on health care forever, I’m down with that.
Finally, not sure what the 79% of the pool being native US citizens has to do with you claims. Can you explain? josh(Quote)
No Theory of Jurisprudence says:
Where is this rule, and why do you think it is binding on Congressmen? No Theory of Jurisprudence(Quote)
josh says:
I heave read the thread. If you’re conceding that your argument doesn’t apply to the mandate, then have at it. josh(Quote)
josh says:
Sorry, I shouldn’t have stopped at just the Bill of Rights. There are a number of other provisions, such as the CC and the N&P, that limit powers. Basically everything that every proponent of the constitutional argument has been saying in this context.
But the Bill of Rights nonetheless plays a role. In the silly broccoli hypo, proponents of constitutionality argue that, while the government could (but of course wouldn’t) compel the purchase of broccoli if it could show it falls in the CC and N&P clause (it could), it can’t make you eat broccoli (due process, among others)
It applies to people with a certain amount of income, but is justified as being constitutional because everyone (and I mean everyone) consumes health care. josh(Quote)
Nick056 says:
Oh well. Look, this seems like a debate over whether Congress is limited by substantive dye process or by narrow constructions of its powers. Because Randy is very smart, he basically wants to resolve this question by saying option B, but relying on Option A for his actual rationale. Thus is probably because he knows that, fir many reasons, substantive due process is not the silver bullet for a libertarian legal reformation. But he also knows that the logic of
due process, not narrow construction, has basically prevailed for a long time. Nick056(Quote)
josh says:
Publius
I think OK is positing the income idea to flesh out the activity/inactivity proponents’ arguments for them. I think he’s honestly trying to get them to articulate a standard. That’s, to my understanding, the point of the whole post.
I don’t think he’s saying the earning-income-as-activity line drawing is accurate or a necessary proof for the mandate to be upheld. He’s just trying to frame it that way as an attempt to find where the line is drawn. Remember, this all was in response to Adler’s post that it is silly to even question the distinction. josh(Quote)
josh says:
sorry. last comment was directed at Publius’ 2:55 pm comment josh(Quote)
MJW says:
In the context of my comment, I was using the term “activity” to mean interstate commerce activity. According to Merriam Webster’s Collegiate Dictionary (10th Ed.) commerce is “the exchange or buying and selling of commodities on a large scale involving transportation from place to place.” Under that definition, the store that sells me a loaf of bread is engaging in commerce, I’m not. The meaning of the term “commerce” in the Constitution may not be precisely the same as the dictionary definition, but, as I previously mentioned, if it includes non-commercial buying, than we don’t have the limited federal government we were promised. MJW(Quote)
Joe says:
If all of them stopped buying insurance and put the money in a savings account instead, it would, in the aggregate, impose no costs on society.
Is this savings account requirement to be compelled? Is it some sort of “mandate” or something? Others explained how you repeatedly make unsubstantiated factual assumptions and focus on narrow things when at issue is a comprehensive long time scheme. One where Congress has broad discretion on choosing various options, some might be more beneficial than others in various respects.
But didn’t this line of argument fail in Lopez? Just because Lopez purchased the gun, it did not provide sufficient link to the commerce clause to make the regulation appropriate.
The connection to a national economic scheme that can be regulated there was more attenuated than the one here. The details of how the health law is closely tailored vis-a-vis Lopez has been covered by others.
With the insurance mandate, the activity is hypothetical purchases of future health care products and services.
everyone purchases health care products and service; it is akin to “hypothetical” suggestions you will eat. regulations can cover stuff that might not happen. a seatbelt requirement isn’t illicit because many people don’t have accidents.
My question stands: what portion of the uninsured class must make relevant health care purchases in a year for the entire class to be regulated?
I don’t know what “relevant” means here since the WHOLE POINT of insurance is to spread the risk and deal with potentialities with various likelihood to occur in the long term. Whatever “portion” is required, Congress has broad discretion and others have repeatedly spelled out enough of an effect is apparent to justify the regulation. Joe(Quote)
Joe says:
[Joe Kowalski also replies to the comment I referenced first in my last comment; the rest is in answer to AJ] Joe(Quote)
Joe says:
if it includes non-commercial buying, than we don’t have the limited federal government we were promised.
Because all the other enumerated limits don’t matter? Joe(Quote)
Arthur Kirkland says:
Those who needed expensive medical care would rely on a bailout; those who didn’t would keep the money. Sounds like ‘heads I win, tails you lose’ and a substantial cost to society imposed by freeloaders. Arthur Kirkland(Quote)
Arthur Kirkland says:
They are the freeloaders. Arthur Kirkland(Quote)
MJW says:
No, they don’t. If one clause permits the government to control virtually every aspect of life, all the limitations in the world on the other powers are for naught. As PubliusFL points out, the argument that the protections in the Bill of Rights still exist ignores the the fact that the Constitution was seen by the Framers as granting few and limited powers prior to those amendments. MJW(Quote)
Adam says:
I can say with absolute certainty that we were not promised a definition of commerce that only applies to buying large quantities.
As for what “commerce” meant at the time, well, that’s a subject of rather a lot of historical dispute. Adam(Quote)
Mark Field says:
Few powers, maybe, but not limited powers in the sense you’re using it. The power to declare war, for example, is unlimited. Congress could declare war on Canada tomorrow and there’s nothing to stop it. Same with the tax power. Hamilton specifically argued not only that the tax power was unlimited, but that it had to be unlimited because the expenses of government couldn’t be predicted. So the government could tax every single cent you own and there’s nothing to prevent that. Mark Field(Quote)
Joe says:
Joe: Because all the other enumerated limits don’t matter?
MJW: No, they don’t. If one clause permits the government to control virtually every aspect of life, all the limitations in the world on the other powers are for naught.
The absence of your line doesn’t open up such virtual control by definition and those limitations would limit the discretion further in many ways.
THIS power is limited. The Bill of Rights was passed largely to limit the scope of enumerated powers. The 2A is if anything a stronger reason for the result in Lopez than the Commerce Clause.
As PubliusFL points out, the argument that the protections in the Bill of Rights still exist ignores the the fact that the Constitution was seen by the Framers as granting few and limited powers prior to those amendments.
The argument is not that the Commerce Clause has no limits. It is that it has various limits PLUS there are lots of other limits besides the fact it is a limited enumerated power. These other limits make only focusing on the Commerce Power to protect liberty myopic at best. Anti-Federalists in fact challenged the claim the grant was truly limited. They demanded a Bill of Rights to underline many limits were in place. This demand to me was not “for naught.” Joe(Quote)
Barry Kearns says:
Unfortunately, Joe, the legislation goes far beyond that. Prior to this legislation, it was possible for me to purchase a reasonable combination of high-deductible catastrophic insurance along with a willingness to pay for mundane (and thus non-catastrophic) expenses out of pocket.
This was possible because insurance companies were permitted to engage in the rational pricing of the risks involved, and charge a very low premium to me for such a policy. This was an entirely rational, responsible and reasonable approach to ensuring that unforeseen circumstances would not lead to a situation where I was “free riding” on society.
This approach to solving the “problem” (a “problem” that is used as a false front to hide the real goal) has now been made illegal under this legislation.
Why? I believe that it is because the real goal is to ensure that there is a net transfer of wealth away from those who rationally minimize their health care expenses via solutions such as this, in order to subsidize those who consume health care resources vastly above the amount of funding which they contribute to the system.
This legislation effectively guts the notion of insurance as it applies to this industry. It has imposed a defacto regime of one-size-fits-all mandatory prepaid medical care.
The legal eradication of policies such as I described has nothing substantive to do with a “free rider” problem, where those who purchase such policies are consuming more in expense (in the aggregate) than they pay into the system. Actuaries exist precisely to ensure that such mispricing does not happen.
It has everything to do with a wealth transfer (without having to come out and SAY that they want the low-risk participants to be FORCED to subsidize the high-risk participants).
That would carry a political cost... and we certainly can’t allow that. Barry Kearns(Quote)
Barry Kearns says:
If the goal were simply to prevent “freeloading” due to huge medical expenses, the goal could have been met by requiring only a minimum of an inexpensive catastrophic coverage policy.
Instead, the legislation requires comprehensive coverage, including zero-deductible services which many will never need, or even be able to take advantage of... which leads to a net transfer of wealth from those who rationally spend little on health care, to those who are complete spendthrifts in this area.
Which I contend was a deliberate goal from Jump Street. Barry Kearns(Quote)
josh says:
This can’t be stressed enough, and is what is really not addressed by Hazel or the other opponents of the mandate. All the data being cited only show who doesn’t have insurance, not that they don;t consume health care or aren’t likely to, ever, in their lifetimes.
I think someone who goes by “4C” said in a comment above that he hasn’t been to the doctor in 30 years. Man. His teeth must be jacked! Taking the whole “Framers” and “Originalism” a bit far. josh(Quote)
c. schultz says:
josh, i didn’t realize Obamacare addresses America’s dental needs. Tell us more. c. schultz(Quote)
Joe says:
Prior to this legislation, it was possible for me to purchase a reasonable combination of high-deductible catastrophic insurance along with a willingness to pay for mundane (and thus non-catastrophic) expenses out of pocket.
Not only was you not required to do so, many were not able to do so if they had certain pre-existing conditions or in the case of those close to the poverty line who now have Medicaid benefits because of expanded benefits, they could not afford to do so either. You still are able to buy “reasonable” insurance. Regulation always removes some possibly reasonable options.
This was possible because insurance companies were permitted to engage in the rational pricing of the risks involved, and charge a very low premium to me for such a policy.
What is “rational” is a big matter of debate that is a policy choice. The fact you thought it “rational” does not mean it was rational. Many thought the scheme quite irrational. I am no economic expert, but the discretion is for the Congress.
This was an entirely rational, responsible and reasonable approach to ensuring that unforeseen circumstances would not lead to a situation where I was “free riding” on society.
If you did not buy the insurance, however, you very well could be a free rider. The “reasonableness” of denying pre-existing conditions or the poor along the margins of health care, well, that’s debatable.
This approach to solving the “problem” (a “problem” that is used as a false front to hide the real goal) has now been made illegal under this legislation.
The “real goal” of expanding medical coverage and reduce cost, even if the latter was done in a bad way? Or what?
Why? I believe that it is because the real goal is to ensure that there is a net transfer of wealth away from those who rationally minimize their health care expenses via solutions such as this, in order to subsidize those who consume health care resources vastly above the amount of funding which they contribute to the system.
The average person has health insurance. There is a great number of uninsured people, but it still is a minority. The “transfer” involved here is minimal overall. The fact that one reason was to cover at risk people is granted. Some see this as humane. We can of course leave them to die or something as thousands do who can’t afford care. This is “rational,” I guess.
This legislation effectively guts the notion of insurance as it applies to this industry. It has imposed a de facto regime of one-size-fits-all mandatory prepaid medical care.
It doesn’t do either one of those things; it provides various options, not a “one size fits all” mechanism. You don’t need to even have insurance. You can buy additional insurance. States can choose various options. etc.
The legal eradication of policies such as I described has nothing substantive to do with a “free rider” problem, where those who purchase such policies are consuming more in expense (in the aggregate) than they pay into the system. Actuaries exist precisely to ensure that such mispricing does not happen.
Free rider problems remained. It was possible, I reckon, to deal with it, the pre-existing conditions etc. and provide some middle path that includes your option. But, Republicans refused to compromise, so there was less options on the table realistically. All legislation has some flaws, of course.
It has everything to do with a wealth transfer (without having to come out and SAY that they want the low-risk participants to be FORCED to subsidize the high-risk participants).
Insurance is about spreading the risk. No one denies this. Taxpayers also subside high risk police and fire protections. Low risk participants also repeatedly become costly unexpectedly.
That would carry a political cost... and we certainly can’t allow that.
People don’t understand how insurance works?
The law is sausage making but it replaced a flawed system. You selectively focus on something here, mixing it with conspiracy theory. No sale, sorry. Joe(Quote)
Ben P says:
That’s the point.
Currently Hospitals have a legal duty to do so. And a legal duty to do so largely at their own cost.
Hospitals being required to bill paying customers sufficient to cover the anywhere from 30% to 70% of care they provide on a free basis is one of the significant drivers of high healthcare costs.
The utilitarian in me agrees that the government has no “moral” obligation to ensure people are provided with care, but there may be a good reason to do it nonetheless.
But regardless of whether you believe the government should or should not provide care, the partial solution of EMTALA isn’t terribly compatable with either. Ben P(Quote)
Hazel Meade says:
@ Arthur Kirkland :
They aren’t freeloaders unless they actually incur medical expenses and don’t pay for them. Having a job and income makes you less likely to impose costs on others, not more. Being also young and single makes you less likely to impose costs and others.
As I said, if all the low risk people got together and formed their own insurance pool, by contributing exactly their own risk-based premiums to a joint account, then there would be very little risk to society. That’s exactly how insurance works. The plan forbids this and forces you to buy non-risk-priced insurance from a pool with a bunch of much sicker people pricesely to force you to pay for other’s treatment. That is not necessary to solve the “free rider” problem. It could be solved in lots of ways that do not involve mandatory purchasing of expensive, comprehensive plans.
But they don’t want that because the free rider problem, in reality has NOTHING TO DO with the real purpose of the legislation. It is designed to force people to pay for other people’s healthcare, not to pay for their own. Hazel Meade(Quote)
MJW says:
Sorry, I was writing hastily. I should have said “few and defined.” MJW(Quote)
josh says:
That simply not true, but ok. The purpose of the legislation indeed was to provide health care to 50 million uninsured and not allow insurance companies to cancel anyone who ever gets sick. In order to do that — to require insurance companies to, you know, insure — congress had to deal with the free rider problem. that’s the purpose of the mandate. so, quite the opposite of what you said, the free rider problem has EVERYTHING to do with the legislation. You could even call it a NECESSARY and PROPER way to regulate the insurance market. (Well, I know you won’t, but current precedent certainly could). josh(Quote)
David Schwartz says:
These only relate to the natural consequences because law and tradition have made them so. There is no reason you couldn’t have a society that imposed no obligation on parents to care for their children. But societies have opted to impose that obligation because society is unwilling to sit idly by and watch parents abandon their children.
Once the individual mandate goes into effect, then yes, earning income implies a duty to buy health insurance. This is for precisely the same reason that having children requires you to care for them — society is not willing to sit idly by and watch you let yourself bleed to death just as it will not sit idly by and let you watch your children starve. David Schwartz(Quote)
scattergood says:
Seriously? The buying and selling doesn’t include you? Really? scattergood(Quote)
MJW says:
Buying does, large scale doesn’t. MJW(Quote)
Mark Field says:
Fair enough; I’ve done it myself plenty of times. Mark Field(Quote)
Robert says:
Because that would be necessary and proper to prevent the pileup of broccoli waste that would otherwise occur. Robert(Quote)
Robert says:
But someone is paying you to do a job other than being a doctor, and so spending money on you that could’ve been spent instead on medical care. And in case you are a doctor, they’re spending money on you that they could’ve spent on a different doctor — in another state. Robert(Quote)
r_r says:
Becoming an employer or a parent are affirmative acts. Only 1 evades the “affirmative act” thing, 2 and 6 do not.
It strikes me as simply clear that regardless, commerce is an activity, not an inactivity, and therefore interstate commerce is. r_r(Quote)
Robert says:
And as a consequence, from other areas of the economy into health care. Robert(Quote)
dvoraktsyn says:
Just to be clear, you understand how buying health insurance is authorized under the Commerce Clause but you don’t see how buying a gun or buying broccoli would be commerce activity? dvoraktsyn(Quote)
AJ says:
But can government require you to work some minimum number of hours so that you have taxable income? Can government force you to purchase some minimum amount of gasoline so you pay some minimum federal excise tax? The taxing power is vast but it does not bring with it a commandeering aspect vis a vis the necessary & proper clause. The same should be true about the commerce clause: the ability to compel commerce when there is not a compelling link to a narrow economic activity and interstate commerce should be viewed as not proper. AJ(Quote)
Mark Field says:
In the right circumstances, possibly. As an easy example, the government can force you to perform work for the public benefit in lieu of taxes (the early states all required road labor).
But really, these rhetorical questions you and others keep asking aren’t very persuasive. Government can do many horrible things to me, things much worse than forcing me to work. It can draft me and send me off to die in Iraq, for example.
My protection against arbitrary government is twofold: the fact that my fellow citizens are unlikely to vote for such awful things which would affect them too (and if they did so vote, they would not believe them awful); and judicial enforcement of the BoR and EP clause. Non-textual limits on the tax power are not the droids you’re looking for. Mark Field(Quote)
AJ says:
Let’s examine the connection with the health mandate. Hypothetically, I choose to not buy health insurance this year, instead choosing to save for a down payment on a house. During the year I buy some over-the-counter medicines and go to the dentist and pay out of pocket. What precisely is the nexus between those activities and either (1) people not paying for their care at emergency rooms or (2) people with pre-existing conditions being denied coverage? If I don’t pay my bills, then I see a strong economic nexus and could understand that the action of defaulting on a commercial transaction of health care would trigger a regulatory requirement. This cuts to the heart of the matter: congress has defined an inappropriately larger class of individuals (the uninsured) as a proxy for people who do not pay their medical bills. Since MOST uninsured do not go to the emergency room and since MOST uninsured do pay their bills, there is no rational basis for assuming the economic nexus that is required by commerce clause precedent. AJ(Quote)
No Theory of Jurisprudence says:
I can imagine a world where a new strain of broccoli explodes across the American landscape like kudzu, ruining the interstate highway system and bringing the American trucking industry to its knees, thereby delaying or ruining interstate commercial transactions for millions. This new strain is, incredibly, resistant to fire and nuclear weapons and all known plant poisons but, remarkably, can be killed only by human spit. However, this new strain of broccoli smells terrible, and being around it makes most people incredibly nauseous, so that no individual is willing to do the requisite deed without significant compensation, which the Government cannot afford because it is crippled by profligate spending. Under these circumstances, I think the Government could compel people to go out and spit on broccoli fields as part of a necessary and proper means of regulating interstate commerce.
So I agree with you, it is possible that Congress could one day have the authority to compel people to “eat” broccoli, so long as doing so was necessary and proper for regulating interstate commerce. I believe this because that’s exactly what the Constitution says. No Theory of Jurisprudence(Quote)
AJ says:
Again, there is no precedent for the federal government setting up such a work/tax payment agreement. If a colony or a state did this, it may just represent a power reserved to those entities. Absent a federal law, this is at best presumptuous and at worst wrong. There is no evidence that the taxing power includes a power to mandate alternative actions.
But I don’t get sent to Iraq by virtue of commerce clause powers (at least not yet!). There is an enumerated power to “raise an army” and a power to “declare war”, each of which authorizes conscription. The ordering of the words “to regulate commerce” is important. The regulation power requires the activity of commerce. Your side is boot-strapping away to find some activity that is not too attenuated. You will lose on this issue.
The problem with that is that it will allow a new method of abusing a political minority for the advantage of the majority. If we allow the attenuated link for the insurance mandate to become precedent, then there will only be nebulous SDP arguments left and most of the economic ones are viewed as dead by those of you on the left. AJ(Quote)
zuch says:
It’s easier when you can discover some semi-plausible “activity/inactivity” distinction that you can make so as to be able to ignore precedent and to declare legislation by someone you really don’t like a lot to be “Unconstitutional! Hah!” Then, by definition, legislation concerning what you tossed under that rubric “inactivity” is not permitted, and you win, easy-peasy....
Cheers, zuch(Quote)
Mark Field says:
I don’t know that your first sentence is true. It might be, but I’m not aware of any evidence on that.
Yes, it may be within the power of the states, and this is exactly the problem with the “OMG Broccoli!” argument. That argument is a SDP argument, and the protections against it are precisely those I mentioned above: your fellow voters and the BoR/14th A. As a practical matter, the fact that no state has imposed a broccoli mandate in over 200 years makes it seem pretty unlikely.
Health insurance and health care are indisputably commerce. The mandate is a necessary method of the Congressional regulatory design.
There’s always a tension between majority rule and minority rights. What we’ve done historically is identify the important rights and fence them off from majority rule. That’s (for lack of a better term) SDP. By trying to expand the historically recognized “minority rights” to include non-textual restrictions on Congressional powers, you’ll undermine democracy as a political system by creating so many “rights” that there’s no space for democracy to operate. Mark Field(Quote)
AJ says:
In the words of Mark Field (paraphrased): “that argument is unpersuasive”. Government cannot compel taxable activity. Even if you run to ground your counter (which I see no evidence of), that is an example of working off a tax debt not creating additional tax liability. To mandate that someone work a minimum number of hours is different than saying that someone who cannot pay a direct/indirect tax can pay it off in labor. With the mandate, the regulatory action has to have an economic activity trigger. The boot-strapping onto future health care purchases of an overly broad class of individuals will most likely fail the N&P evaluation. As I explained upthread, the cost-shifting in emergency rooms and the ban on pre-existing conditions are only tangentially related to the status of being uninsured. AJ(Quote)
No Theory of Jurisprudence says:
Do you think Congress could mandate the purchase of health insurance under the “raise an army” or “declare war” powers? No Theory of Jurisprudence(Quote)
No Theory of Jurisprudence says:
The reason that economic SDB arguments are dead is because they were still-born that way. No Theory of Jurisprudence(Quote)