...Tribe's op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court's commerce power doctrine as referring to "commercial choices." In fact, the cases refer to "commercial activities," and a switch from "activity" to "choice" is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.
Tribe attempted to skew opinion by substituting "choice" for "activity," and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same from case to case...
althouse.blogspot.com
JohnF says:
The pro-mandate people seem to have arguments of these forms:
1. The Commerce Clause is not limited to the regulation of “activity,” but covers regulation of inactivity as well.
2. The Commerce Clause is limited to regulation of “activity,” but declining to buy insurance is an activity.
3. The Commerce Clause is limited to regulation of “activity,” but since everyone participates in the health care industry at some time or other, and the health care industry is interstate commerce, the mandate is just one aspect of regulating everybody’s activity in interstate commerce.
The anti-mandate forces say of each:
1. All precedents about the Commerce Clause speak of regulating activity; none say that regulating inactivity is appropriate.
2. Tribe makes this argument by changing the words activity and inactivity to “choice.” No precedent supports this view at all.
3. This is an attractive argument except for the fact that it does not represent what Congress did. It did not condition one’s participation in the health care industry as a patient upon one’s having an insurance policy. It required the policy whether you participated or not. It could have conditioned one’s use of the health care industry on any number of things, including owning a policy, but for whatever reason it did not. Yet.
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