The Proposed Activity/Inactivity Distinction and the Child Pornography Laws

One of the interesting arguments raised in the litigation over the individual mandate is whether courts should adopt a new activity/inactivity distinction in Commerce Clause doctrine. As I understand the argument in favor of the proposed distinction, the Commerce Clause permits Congress to punish you for doing something that it prohibits but should be construed so that Congress cannot punish you for not doing something that it requires.

Unfortunately, I’ve had a hard time getting proponents of this theory to explain exactly what it means, so I thought an example might be helpful to help us work through some of the issues. Federal criminal law imposes a mandate upon any person who comes into innocent possession of child pornography. If a person comes into innocent possession of child pornography — for example, if you receive an unsolicited book in the mail, or an e-mail with an attachment, that contains child pornography — the law requires you to act to avoid criminal liability. Specifically, the person must:

promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) [take] reasonable steps to destroy each such visual depiction; or
(B) report[] the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

18 U.S.C. 2252(c). If a person does not do this, then he or she is guilty of a federal felony crime that has quite severe sentences.

I have two questions for proponents of the activity/inactivity distinction. First, in your view, does this law extend beyond Congress’s power by regulating inactivity?

Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down? The quoted statute, 18 U.S.C. 2252(c), is a statutory exemption to liability in the child pornography law. It is a “mandate” in the sense that it gives people a way to avoid going to jail. If the child pornography laws are an unconstitutional mandate, must the child pornography laws be struck down at least as applied to innocent possession? In other words, is it beyond the reach of Congress to require those who come into innocent possession of child pornography to take reasonable steps to destroy it or report the matter to law enforcement?

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