The challenge to the constitutionality of the individual mandate is based heaviily on a proposed distinction — one that I believe was first articulated two years ago by our own Randy Barnett — that Congress can regulate “activity” but not “inactivity.” I’ve expressed my own puzzlement as to what this distinction is supposed to mean. When Randy and I debated the constitutionality of the mandate in January, however, Randy poked fun at my puzzlement on the ground that “only a law professor” could fail to understand such a common-sense idea. Based on today’s first appellate argument on the constitutionality of the mandate, it looks like appellate judges may have the same problem. Lyle Denniston reports:
One thing about the fate of the new health care law emerged vividly in its first challenge Tuesday in a federal appeals court: the challengers cannot defeat the law in court unless they sharpen their argument that Congress has set out in a revolutionary new direction to control Americans’ personal lives. They have built their challenge almost entirely on the premise that Congress can regulate “activity,” but cannot regulate “inactivity.” But that attempted distinction, so clear in the eye of the challengers, seemed fundamentally baffling — and thus probably unconvincing — to the three judges who heard just over two hours of argument in the Fourth Circuit Court in Richmond.. . .
Circuit Judge Diana Gribbon Motz was persistent, but ultimately unsuccessful, in trying to get Liberty University law school dean Matthew D. Staver to say just what “activity” means in talking about Congress’s power to regulate the Nation’s commerce, including the health care part of commerce. Staver tried to make the notion clearer, saying that it was “something you could see, touch,” or “something tangible.” People who don’t want to buy health insurance, he argued, are engaged only in “idleness,” and that is something beyond Congress’s reach.
But Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned “activity” as a crucial factor, and the Constitution itself does not mention the word, so, she kept asking, just what is it? “We’re trying to get you to give us some help,” the judge said, “with this distinction you think is so important.”
Circuit Judge Andre M. Davis wondered if “a mental process” is “activity,” obviously implying that a person’s specific choice not to buy insurance might be something Congress could regulate, even if “activity” were a necessary predicate. And, Davis asked, “You talked about ‘inactivity.’ Where in the cases do you find that?”