The challengers to the constitutionality of the Affordable Care Act often argue that the Affordable Care Act is “unprecedented” — and therefore particularly suspect — because it uses the Commerce Clause to try to regulate inactivity. I’m still not sure of the line between activity and inactivity, so I’m wondering what proponents think of the provisions found in 47 U.S.C. 223 .
47 U.S.C. 223 is the federal telecommunications harassment statute, titled “Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications.” It generally prohibits harassing others, threatening them, and sending obscene materials over interstate communications networks. So far, it’s all about regulating interstate activity. But the statute also prohibits failing to stop others from engaging in such offenses over “telephone facilit[ies]” they control:
Whoever . . . knowingly permits any telecommunications facility under his control to be used for any activity prohibited by [the sections on sending harassing communications, etc. ] with the intent that it be used for such activity, shall be fined under title 18 or imprisoned not more than two years, or both.
47 U.S.C. 223(a)(2). Another section is similar, but lacks in the intent requirement: It prohibits “permit[ing] any telephone facility under such person’s control to be used for an activity prohibited” elsewhere in the statute. 47 U.S.C. 223(b)(1)(B).
I’m not sure how advocates of the activity/inactivity distinction will view this statute, but just from a common-sense perspective it looks to me like it regulates inactivity. The crime is permitting someone else to act — that is, failing to stop them from acting. If the decision not to buy health insurance is “inactivity,” then I would think the decision not to stop someone from committing a harassment crime would be “inactivity,” as well. Section 223 was also clearly enacted under the Commerce Clause power, as it regulates the channels of interstate commerce and communication of the telephone network and other communications networks.
So here’s the question for proponents of the activity/inactivity distinction: Does this crime attempt to regulate activity or inactivity?