The Need for Clarity of the Proposed Activity/Inactivity Distinction

In their posts below, both Jonathan Adler and Randy Barnett suggest that it’s okay for the proposed activity/inactivity distinction to be unclear because the “actus reus” distinction has been unclear for a long time and the world hasn’t ended. I think this response fails to recognize an important difference between legal doctrines that rarely arise (and therefore can remain uncertain) and those that arise often (and therefore have more of a need to be clear). In this post, I wanted to explain the difference and why I think it matters.

Let’s start with the “actus reus” requirement of criminal law. The exact contours of the act requirement are fuzzy because they almost never actually come up in real life. We know that the act requirement is minimal, and it’s extremely rare for legislatures to enact a criminal law that doesn’t obviously satisfy the act requirement. Plus, courts construe criminal laws to impose an act requirement by statute even if it’s not clear on the face of the statute. As a result, there are only a handful of cases that casebook authors can use, and they’re mostly pretty terrible at describing the issue. To teach the material, law professors have to come up with all sorts of creative hypotheticals that just don’t often come up in real criminal prosecutions: People who commit crimes while sleepwalking, under hypnosis, and the like. Such scenarios may make for good (or bad) movies, but they aren’t the subject of real-world prosecutions and therefore aren’t found in judicial decisions. Put bluntly, the ambiguities remain because the subject is more of theoretical than real-world significance. Most prosecutors, defense attorneys, and criminal trial judges go their entire careers without encountering a “voluntary act” problem.

In contrast, when the Supreme Court announces a limitation on the scope of federal power, it tends to come up again — and often quite quickly. The very sad reality is that Congress has little or no interest in federalism. The House and Senate love expanding the scope of federal law. And it’s not just one party to blame, either. Neither party has a serious interest in federalism, as each side is quick to pass federal legislation that is really about state law concerns if the politics suit them. As a result, if the Supreme Court adopts the activity/inactivity distinction, it seems likely that future Congresses will use whatever hook the Supreme Court says is required — and not one iota more — to make sure their laws pass judicial muster.

We saw this with Congress’s reaction to United States v. Lopez, the 1995 decision striking down the Guns-Free School Zone Act. At the time, the law made it a crime “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” After the Supreme Court struck down the statute, Congress simply reenacted it a few months later with a new interstate commerce hook. The current form of the statute makes it a crime “for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone” (new language in italics). Lower courts have upheld the amended statute, at least so far.

The lesson, I think, is that Congress will go right up to the line that the Supreme Court draws. If the Supreme Court strikes down the mandate because it regulates “inactivity,” we can bet that some members of Congress will quickly submit a bill adding an “activity” requirement to the mandate. In light of that, I think it’s important for proponents of the activity/inactivity distinction to be clear as to what kind of distinction they have in mind.