At Prawfsblawg, Carlton Larson responds to my critique of his argument that federal regulation of strikes and consumer boycotts are regulations of inactivity similar to the Obamacare individual mandate. Larson doesn’t comment on my discussion of strikes. But he does take issue with my analysis of boycotts, which noted that boycotts qualify as “economic activity” because they “involve a concerted effort to pressure some firm or government into changing its policies. That differentiates them from an individual consumer’s decision not to purchase a particular product.” Larson replies:
Count me unpersuaded by this distinction. Suppose someone forwards me an e-mail urging me not to buy the products of Widget Co. because the company engages in child labor overseas. I then decide not to buy that company’s product. Under Professor Somin’s view, both the e-mail and my decision not to buy the particular product are a form of economic activity.
If this is true, it is very hard to see why the individual mandate is any different. Aren’t people who refuse to buy health care simply boycotting health insurance companies? Why would it make any constitutional difference if they did so in concert with other people or what their particular reason is for doing so? Indeed, one would think that a boycott of a company for political reasons, given the First Amendment, would receive more, not less, constitutional protection. If Somin is correct that such boycotts can be prohibited (a surprising admission by a prominent libertarian constitutional theorist), then the individual mandate really is an easy case.
I think it’s fairly obvious that sending an e-mail urging people to boycott a company is a form of activity. It’s possible, however, that merely reading the e-mail and choosing to buy a product is not, or at least is not “economic” activity. No federal court has ever held that the federal government has the power to force consumers to buy products they decided to not to purchase as a result of reading a call for a boycott. And I certainly think that such a statute would be unconstitutional if one were ever enacted. So perhaps I was too quick to conclude that passive participation in a boycott qualifies as economic activity, though organizing one or actively promoting it surely does. Note, however, that there is a big difference between a regulation forbidding consumer boycotts, and one requiring a commercial enterprise to buy certain products or serve particular customers as a condition of staying in business. A law requiring the latter regulates the preexisting economic activity of operating a business, much like a law restricting strikes regulates the economic activity of employment for pay.
Obviously, the First Amendment might constrain some congressional regulation of politically motivated boycotts, as Larson suggests. But that issue is separate from the question of whether such regulation falls within the scope of Congress’ power under the Commerce Clause.
Finally, I should note that I did not say that the Constitution gives Congress the power to prohibit boycotts. I merely meant that such regulation is permissible under current precedent, which allows Congress to regulate virtually any “economic activity.” As I have argued elsewhere, I think much of that precedent is badly misguided. The activity-inactivity distinction is an interpretation of current precedent, which focuses heavily on the concept of “economic activity.” It is not an endorsement of that precedent or a theory of the correct interpretation of the constitutional limits to federal power.