I appreciate Orin’s thoughtful post below, responding to my post form last night on the activity/inactivity distinction. I think it helps make my point that the basic distinction between activity and inactivity is readily understandable. What Orin points out, however, is that the precise contours of this distinction are a bit fuzzy and may be difficult to apply in some contexts. That is certainly true, but this is true of just about every important legal concept — a point, Orin notes, that we law professors dutifully seek to impress upon our students. But to say that a distinction is “complicated” or somewhat fuzzy is not to say that it is meaningless, unworkable, or inapplicable. It is merely to recognize that there are tough cases. I readily concede that point, but I also don’t think it does much work in the context of this debate.
Throughout the law there are concepts that we understand and apply, while recognizing the existence of residual ambiguity and definition problems. Under the First Amendment, for example, we know that some things are speech and others are not, but the precise line of demarcation is no always clear. Fortunately, most such distinctions, most of the time, are easy to apply — we know the difference between day and night even if twilight blurs the line of demarcation — and First Amendment law proceeds along quite well even though some residual ambiguity around the edges about what constitutes speech remains.
Returning to the examples of common law duties, all of the examples Orin gives in his posts, with the possible exception of the first (statutory impositions), are examples of positive duties that arise as a consequence of an individual’s affirmative act. Indeed, this was the general nature of affirmative duties (as opposed to negative duties) at the common law. So, for instance, when one enters a relationship, duties attach as a consequence of that action that would not attach otherwise. Again, there are tough cases (e.g. some familial duties), but the basic concept is readily understandable. At common law, as a general rule, affirmative duties could only arise as a consequence of an affirmative act. Mere presence in the world was not enough. Again (and I repeat myself), there are tough cases and fuzzy lines, but the basic distinction is readily understandable if not perfectly definable.
Orin’s suggestion that the mandate would satisfy an activity requirement of the sort we see in the common law rests on a clever sleight of hand. As Orin notes, “Under the common law standard, the decision not to deviate from a pre-set course of action over which a person has control can lead to liability.” Exactly. The decision to engage in a particular course of conduct — the decision to act — leads to the creation of a duty not to cause harm as a consequence of said conduct. Any liability is a consequence of the duty that arises from the initial action. That is not the case with the mandate, as Congress is asserting the authority to require every person within the country to purchase a qualifying health care plan. This obligation is not contingent upon anyone having taken any action. It is an obligation that exists as a consequence of one’s presence in the country. That Congress exercised some restraint by exempting some people is beside the point, just as it did not help that the Gun-Free School Zones Act only prohibited guns in or near schools.
This all leads to the question, which my prior post did not address, of how an activity/inactivity distinction would work in this context. My short answer is that an activity subject to federal regulation must be an affirmative act that, as a general matter, one may choose whether to undertake. In short, the federal government could impose an otherwise constitutionally permissible affirmative obligation contingent upon an individual taking an affirmative act. It would be a line much like that whcih we see in the case of affirmative duties under the common law and similar to that which we see in other federalism contexts. Does this create a perfectly clear, bright line? Of course not. (What test in constitutional law does?) It does, however, create a distinction that fits well with similar distinctions we see elsewhere in the law.
Orin could no doubt respond with all sorts of examples in which this line could be difficult to apply (such as this one involving the possession of child pornography). Tough cases there are and always will be, but the mandate, as written, would not be among them, nor would many (if any) other federal laws, save the child pornography example. Indeed, when the Supreme Court decided United States v. Lopez, the number of federal statutes called into question by the Court’s holding was far greater than the number potentially threatened by a decision striking down the mandate. (For more on the parallels between the mandate litigation and Lopez, see here and here.)
That Congress might be able to circumvent the line by replacing the mandate with some sort of broad conditional requirement does not defeat the argument for drawing the line in the first place. Again, when the Supreme Court decided Lopez there was some question whether Congress could reenact an equivalent ban on guns in or near schools by adding formal findings or a jurisdictional requirement, but that did not dissuade the Court from striking down the statute and embracing a previously unarticulated limitation on the scope of the commerce power. All that mandate opponents are really seeking is that the Court do the same thing here. Whether this argument will satisfy Justice Kennedy is something we’ll just have to see.