Question for Supporters of the Individual Mandate
Can I just get an admission that this makes the so-called individual mandate look pretty ridiculous?
The individual mandate — that is, the affirmative requirement that all people must purchase health insurance from a given list of programs — is now under fire for its doubtful constitutionality. Never before has Congress declared that a person’s inaction (on a matter only indirectly affecting interstate commerce!) is a proper subject for congressional regulation, and that failing to purchase a government-approved product is a regulable
activity… er, a regulable inactivity.
Here’s the trouble as I see it. Make inaction regulable, and anything can be made compulsory. Anything! Inaction includes a virtually limitless number of things that I’m not currently doing, and — with respect to my inaction — Congress would appear empowered to direct me otherwise.
On this theory there is no limit to the economic activities we might be forced to undertake, all because not doing them might affect interstate commerce: You failed to shop at Wal-Mart, a firm that engages in interstate commerce. We therefore direct you to shop at Wal-Mart, under the authority of the interstate commerce power. You failed to drink enough Coca-Cola, so now you must go buy (and consume) more of it. Aaaand you failed to provide at least 20 hours of slave labor last month — slave labor whose product could have entered the stream of interstate commerce, if only you had done it!
I trust the last is merely an absurdity. But where would supporters of the theory draw the line? There is a difference between prohibiting an action and compelling one — and the latter is much more of an attack on individual liberty. Nor does the usual analogy to auto insurance hold up — auto insurance is a product tied, at the state level, to another very clearly related set of actions — owning and driving a car. Compulsory health insurance applies to everyone, merely for being human. Surely this is a relevant difference.
Even compulsory tax payment isn’t as bad as the compulsory purchase of a product. People ordered to pay taxes can often act to avoid the tax, to minimize its burdens, or at the very least to secure the tax money through a very wide variety of different means. This leaves citizens relatively to their own devices. Ordering people to purchase a particular product or set of products does not allow any of these freedoms.
In the linked post, Professor Orin Kerr describes one possible fix here — rather than claiming to regulate inactivity, which is how it stands right now, the law might be amended to regulate inactivity in conjunction with some action that has already been found to be a part of interstate commerce, such as:
a) Congress prohibits the affirmative act of crossing state lines after having failed to purchase health insurance.
b) Congress prohibits the affirmative act of using a means of interstate commerce, such as the Internet or the telephone system, after having failed to purchase health insurance.
c) Congress prohibits the affirmative act of using the postal service after having failed to purchase health insurance.
d) Congress prohibits the affirmative act of purchasing of any item in interstate commerce after having failed to purchase health insurance.
Note that (d) under current jurisprudence would be tantamount to a direct, affirmative order anyway, under Wickard v. Filburn and the more recent Gonzales v. Raich, which held that economic activity taking place entirely within a given state may still count, for constitutional purposes, as “interstate commerce,” because such activity may have an indirect effect on interstate commerce.
(Of course, by this theory I actually am the Wal-Mart corporation, because my declining to shop at Wal-Mart may have an indirect effect on Wal-Mart. Such are the mysteries of constitutional interpretation.)
In any event, I’m curious what supporters of compulsory insurance think. Which of Prof. Kerr’s options is most palatable to you? Or are you okay with regulating inaction, just by itself, without much concern that it might lead to other compelled commercial activity? What guarantees do you have that you won’t be forced to buy other things in the future too? If this isn’t how you draw the line, then how would you draw the line?