• What Judge Vinson Didn’t Say

    It would be easy to construe Judge Vinson’s decision allowing the challenge to health care reform in Florida to proceed as bolstering the claim that the individual mandate constitutes an unprecedented regulation of “inactivity”. But it would be wrong.

    Judge Vinson seems to have credited, at least at this stage, the government’s argument that the individual mandate regulates when and how, as opposed to whether, individuals will consume and pay for health care. But his conclusion that the mandate was nevertheless unprecedented turns on the fact that in other cases upholding regulations requiring individuals to undertake a particular action in the context of a larger course of commercial activity, the larger course of activity was voluntary, whereas the consumption of healthcare is necessarily incident to simply being alive:

    There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case, but I will only focus on perhaps the most significant one: the motel owner and the farmer were each involved in an activity (regardless of whether it could readily be deemed interstate commerce) and each had a choice to discontinue that activity. The plaintiff in the former was not required to be in the motel business, and the plaintiff in the latter did not have to grow wheat (and if he did decide to grow the wheat, he could have opted to stay within his allotment and use other grains to feed his livestock — which would have been most logical, since wheat is usually more expensive and not an economical animal feed — and perhaps buy flour for him and his family). Their respective obligations under the laws being challenged were tethered to a voluntary undertaking. Those cases, in other words, involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority.

    While I ultimately believe that the distinction between voluntary and involuntary commercial activity is one without a difference for purposes of the Commerce Clause, at least it is an accurate distinction. Calling the individual mandate a regulation of inactivity as opposed to activity is not.

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