On Roberts: Not a Fan of the Butterfly Effect

The Atlantic‘s Andrew Cohen pulls out some choice quotes from today’s SCOTUS opinion penned by Chief Justice Roberts:

“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the Government’s theory — empower Congress to make those decisions for him…

The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”

I want to briefly call attention to some of the reasoning going on and claims made in these three paragraphs. I’m not a legal scholar, or a professional philosopher, or prone to particularly analytic insights. But I wonder:

Roberts argues that the mandate “compels individuals to become active in commerce.” However, it seems clear to me that a decision not to purchase is as much a part of commerce as its opposite. After all, decisions not to purchase overpriced, flimsy, or unnecessary products and services all drive market activity. And at bottom, the motivating force behind health care reform was tempered with a need to solve the free-rider problem that might accompany it. Making access to health care more affordable and obtainable, through market oriented mechanisms, required a further mechanism that would help prevent people from benefiting from these new reforms without doing their part to pay for them (e.g. not buying insurance until they get sick, but then taking advantage of lower costs/no penalties once they did).

Which is to say, people’s inactions were a primary motivating force behind the most controversial part of the law, precisely because they are such an integral part of how the market functions. If there is a meaningful and relevant distinction between “market” and “commerce” here that I’m missing (a strong possibility), please enlighten me.

Second, Roberts accurately notes, “Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it.” To count that as commercial activity would be to allow Congress the power to regulate almost anything, he claims.

I certainly grant the far reaching consequences of allowing that such is the case. Yet it certainly seems that such is the case. Isn’t it true that when I decide not to buy a car, my individual choice has diluted but still far reaching consequences for everything from road construction to car manufacturing to metal production in China? All of my actions, whether linguistically constructed as negative or positive ones, have their binary opposites. I can do this, or that. And doing this means that I don’t do that.

Choosing not to buy health insurance is not a decision not to participate in that market, it’s a decision to participate in a very specific way. And when people collectively decide not to buy something, like, say, meat, demand is likely to fall, bringing the price along with it. Are we to deny the chain of causality here merely because acknowledging it forces us to confront the very expansive notion of Federal powers that adheres in the Commerce Clause as a result? Perhaps the Commerce Clause should be amended, rather than having Justices waste their time obfuscating the truth for the greater political good.

Finally, Roberts claims the following, “The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity.”

A more accurate description would be that the mandate forces individuals to account for their actions, whether they decide to purchase health insurance or not, because they will end up affecting the market for the rest of us, whether they do nor don’t.

Purist might argue that, in theory, someone could choose to go through life and never once interact with the health care market. It would certainly be a short life, so maybe this isn’t so unlikely after all. But either way, it is like claiming that, since it is conceivable that someone could go through life without ever polluting the property of someone else, laws which account for these transgressions proactively, rather than after the fact, are illiberal and burdensome. It’s possible that I could burn a coal powerplant next to your house, and the gas particles inhabiting our two properties interact, or better yet don’t interact, in such a way that my actions in no way burden you. Is this the kind of border case that we should be concerning ourselves with?

I am still reading through the opinions and dissents, but, as per usual, I find myself disappointed by the lack of imagination, or metaphysical explanation the honorable men and women of the court feel the need to employ when making such claims. Roberts isn’t required to justify himself, and his explanation, being a contribution to new legal precedent, positions it in different context than that of treatise, meditation, or musing.

Still, I find the lack analytic rigor disturbing, especially when deciding questions of such import.