Why Going Without Health Insurance Isn’t an “Activity”

Current US Supreme Court Commerce Clause precedent holds that Congress can regulate almost any “economic activity” and most “noneconomic activities” as well. The Obamacare individual mandate, however, seems to regulate inactivity – notpurchasing a product. Both Judge Steeh in the Thomas More Law Center decision and Judge Moon in the recent Liberty University ruling argue that, contrary to appearances, not having health insurance really is an “activity.” I have previously criticized parts of this argument here and here. But it would be helpful to address it more thoroughly.

The argument comes in two forms: a broad version claiming that any “economic decision” qualifies as an economic activity, and a narrow one focusing on supposedly unique characteristics of the health care market. Both versions fail for similar reasons: they end up giving Congress unconstrained power to mandate virtually anything, something the Supreme Court has repeatedly said is impermissible.

I. The Broad Version.

The broad version of the argument claims that any decision with economic effects qualifies as an economic activity. Consider Judge Moon’s statement of this argument:

[D]ecisions to pay for health care without insurance are economic activities…[because Plaintiffs’ preference for paying for health care needs out of pocket rather than purchasing insurance on the market is much like the preference of the plaintiff farmer in Wickard [v. Filburn] for fulfilling his demand for wheat by growing his own rather than by purchasing it….. Because of the nature of supply and demand, Plaintiffs’ choices directly affect the price of insurance in the market, which Congress set out in the Act to control.

The flaw in this argument is obvious. Because “of the nature of supply and demand” any decision to do or not do anything will directly affect the price of some good or other. If I choose not to purchase a car, that will affect the price of cars. If I choose to sleep for an hour rather than work, I will earn less money, which in turn means that I will engage in less consumer spending and/or investment, which will affect the prices of various goods. By this analysis, Congress could not only force people to purchase any product of any kind, it could also force them to engage in just about any other kind of activity that affects the price of some good or other that “Congress set out… to control.”

As I have previously pointed out, Judge Moon’s citation of Wickard does not help his case because Wickard involved regulation of economic activity narrowly defined: commercial farming. Nothing in Wickard suggests that Congress has the power to force ordinary people to purchase wheat merely by virtue of their being residents of the United States.

II. The “Health Care is Special” Version.

In addition to arguing that Congress can regulate virtually any “economic decision,” Steeh and Moon also contend that the individual mandate regulates an activity because of the special nature of the health care market. As Judge Steeh puts it, “[t]he health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true.” For this reason, he contends, “The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.” Since everyone participates in the health care market, the argument goes, choosing not to buy health insurance does not qualify as inactivity. It’s just a decision to get health care some other way.

In reality, it is not quite true that everyone purchases health care. Some people rely on charity or home remedies, or simply never get sick enough to require medical treatment before they die. Still, it’s certainly true that the overwhelming majority of people participate in the health care market in some way.

This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.

Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation.” As Judge Steeh might put it, “No one can guarantee….[that he] will never participate in the [transportation] market.” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.

How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else. Even ascetic monks who get their entertainment solely from meditation still have to use resources to pay for the space in which they meditate.

Finally, consider a mandate requiring everyone to pay to establish a blog and write in it every day. True, many people don’t participate in the blogosphere in any way. But everyone participates in the market for information. You can’t live without it! And blogging is just one way to convey information about yourself and your views to others. If you don’t blog, that means you will be sending out information in some other way: e-mail, snail mail, telephones, smoke signals…. And of course all of these modes of communication have to be paid for. No “living, breathing being…..can… opt out of this market.”

I won’t bore readers with the details. But it’s easy to apply the same analysis to just about any mandate to do anything.

Perhaps the real “specialness” of health care resides in the fact that it is such an important good. It is indeed very important (though the same can be said for transportation, information and various other goods without which modern society would collapse). But that does not make not having health insurance any more an “economic activity” than it would be otherwise. In that legally relevant respect, health care turns out not to be special at all.

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