Baffled that Anyone Is Baffled by the Activity/Inactivity Distinction
Jonathan H. Adler • May 11, 2011 11:58 am
The Fourth Circuit panel may have been baffled by the activity/inactivity distinction, as Orin reports, but it’s really not a new idea. The distinction between activity and inactivity is not an alien concept to the law. We see this distinction where the law recognizes the difference between acts of commission and acts of omission, for instance, or where there are legal (or even constitutional) distinctions made between prohibitions or limitations on conduct, on the one hand, and mandated conduct, on the other. Furthermore, if one accepts a classical liberal conception of individual liberty, the former are a qualitatively lesser infringement upon liberty than the latter. This does not, by itself, establish that the activity/inactivity distinction should be recognized as a limitation on federal power under the Interstate Commerce and Necessary & Proper Clauses. Nor does it suggest that it is always easy to draw the line separating activity from inactivity, as there may be closes cases here (as elsewhere). It does, however, suggest that there should be a bit less bafflement about the underlying concept.
An obvious example where the law has long recognized a distinction between activity and inactivity is the duty to rescue. Under the common law, simple inactivity — a failure to rescue, by itself — can never be a source of liability. Rather, the duty to rescue only arises when one engages in certain activities — that is, when one takes certain affirmative steps, such as by creating an ultrahazardous situation entering a certain type of relationship with the individual in need of rescue becoming a common carrier, or taking initial steps toward rescue. And only after certain activities are engaged in can there be liability. Whether certain activities are, or should be, the source of a duty breach of which could result in liability has prompted significant debate, but the fact that the common law required activity of some sort before a duty could arise is clear. In other words, under the common law, activity could create the duty but inactivity could not.
We can also see analogous distinctions made in some areas of constitutional law. Under current First Amendment doctrine, for example, the government’s ability to compel speech is greater once a speaker engages in a relevant activity than when a would-be speaker has done or said nothing. So, for instance, the government can mandate that those engaged in dangerous activities post warnings or that potentially misleading speech be cured by disclaimers. But the government lacks any general ability to simply mandate speech across the board. Again, the law recognizes that engaging in certain sorts of activity may result in legal obligations where simple inactivity, doing nothing, does not.
One way to think about the activity/inactivity distinction is to recognize the difference between prohibiting conduct or imposing conditions on conduct, on the one hand, and mandating conduct on the other. We see this distinction in the Supreme Court’s current federalism jurisprudence. The federal government may prohibit (preempt) states from engaging in certain activities under the Supremacy Clause. It may also subject states to generally applicable regulations if states engage in those activities that would make them subject to such rules, e.g. if states become market participants, employers, property managers, etc. The federal government may not, however, simply commandeer states to engage in activities because that is what the federal government wants. That is, once states engage in certain activities, the federal government may be able to regulate how those activities are conducted, but it may not mandate that states engage in certain activities in the first place. Even under the 14th Amendment, we see plenty of areas in which Congress may require states to administer state-run programs in a particular way, so as to ensure equal protection or prevent the infringement of fundamental liberties, but few if any in which “inactive” states are mandated to do something in the first place.
As noted above, the idea that there is a fundamental difference between a prohibition or conditional regulation, on the one hand, and a mandate, on the other, follows from a classical liberal conception of individual liberty. From this perspective, a naked mandate — a requirement that one engage in an activity — is a greater imposition than a prohibition or a conditional regulation. Why? Think of it this way. At any given moment, an free individual can engage in a near-infinite set of activities (n). A government prohibition reduces this set by one (to n–1). A conditional regulation has a similar effect, in that it imposes a burden on one activity, but it does not otherwise reduce the set of options. A mandate, on the other hand, requires that at a given moment the mandated individual engage in the required activity, to the exclusion of all else. If a person were mandated to wash his car, that time cannot be spent doing other things. The loss of opportunities is near infinite — indeed, it is n–1 — insofar as the mandate precludes the individual from doing other things simultaneously. Therefore, a simple prohibition or conditional regulation is a rather minor limitation on individual liberty, whereas a mandate is not.
The same logic applies to economic mandates. A free person can spend a dollar on a nearly-infinite set of things. A prohibition on the purchase of a good or service reduces the set by one. You may not be able to buy X, but you still have a near-infinite set of options for how to use the dollar. A conditional regulation — if you buy X, you must also buy Y or may only buy X if it meets certain conditions — still does not impose a categorically greater imposition. You still have a near-infinite set of alternative uses for that dollar. When the government mandates that you purchase something, be it health care, a fitness club membership, broccoli, or whatever, you lose the ability to spend that dollar on anything else. Your set of options for that dollar has been completely extinguished, and the set of opportunities has been definitively reduced. This does not mean that mandates are necessarily unconstitutional, only that they are qualitatively different in a way that helps us understand the distinction between regulating activity and mandating activity (which is just another way of saying “regulating inactivity”).
[A quick note on taxes. Taxes have the same effect as a mandate. This is why taxes are viewed with such hostility and suspicion, even if they are necessary. It is no accident that, in McCulloch v. Maryland, Chief Justice Marshall called the power the tax the “power to destroy,” or that the founders felt the need to separately enumerate, and constrain, the taxing power.]
To be clear, my argument in this post is not that an activity-inactivity distinction is self-evidently imposed by the Constitution (though I believe such a distinction is consistent with current precedent and ought to be adopted), or that the individual mandate should be held to be unconstitutional (though I believe that as well). My point here is simply that the activity-inactivity distinction is not some alien invention of libertarian academics, and not qualitatively different from distinctions we see in the law and our legal tradition. Whether this means the distinction should be incorporated into (or made explicit within) existing enumerated powers doctrine is a separate question for another time.
volokh.com
jhall says:
L4L: If this was the crux to understanding the commerce clause, shouldn’t we have seen it before?
We didn’t see it before because we haven’t had to look for it until now. As was already pointed out by one of the Conspirators, there was no reason to discuss activity/inactivity before the court 100 years ago, because 100 years ago there were still plenty of other meaningful limits being imposed that would have made a mandate such as this unconstitutional.
All the Justices on the Supreme Court believe (or at least profess to believe) that there must be some limit on the scope of the commerce clause. And while the Commerce Clause has not yet been converted into a federal police power, it has come pretty close. The 4th Circuit justices are asking “why should we care about this activity/inactivity distinction?” The answer is: “Because it’s a rational place to draw a line that would prevent the federal government from converting the commerce clause power into an all encompassing police power.” However, if these judges want their opinion to survive review by the Supreme Court, the question they should be asking is “If we find this mandate Constitutional, are their any meaningful limits left on the commerce clause power?”
volokh.com
4C says:
There is also a fundamental flaw and inherent inequity in the false assumption that ‘everyone will use the healthcare system at some point’, with the implicit added assumption that ‘they will use it to a financially signifigant degree’.
Personally — I have not seen a doctor in 30 years. During this time, my medical expenses, such as they are, have not been covered by any employer-provided insurance ( glasses ). Maybe this is not ‘what the AMA recommends’, but it my personal choice. Unless the government is now under ObamaCare going to mandate annual physicals ? Mandate medical treatment ?
I may well die tomorrow, at the hands of a Mack truck. What then of the 30 years that I’ve been paying medical insurance premiums ( as / if part of a salary etc ), plus mandatory employee ‘contributions’, plus what Obama now wants to force me to purchase ( as an independent contractor ) ?
Over the years, at today’s rates, my ‘premiums’ might easily add up to $ 200,000, $ 300,000, or more. To me, that’s ‘a house, paid for, and a damned sight nicer one than I ever dreamed of owning at that’, or ‘a retirement fund like I never imagined’.
And the government wants to tell me I’m obligated to give this towards other people’s health care, on the hypothetical basis that ‘I might some day need expensive medical care’ ??? Well, what if I don’t ?
The whole thing is immoral, IMO, and utterly beyond anything the government should be able to force on me, Constitution or no Constitution. Judges or no judges...
volokh.com
Giant Frog says:
I’m baffled by the ability of the socialists to consistently obscure and twist rational arguments by rephrasing them in their own ludicrous terms.
In this case they want to use the commerce clause as an excuse, once again, to regulate something that isn’t interstate commerce, and somehow they’ve managed to rephrase the argument into a perversely silly discussion about the differences between activity and inactivity as relates to...something that isn’t even interstate commerce.
volokh.com
Bored Lawyer says:
“The Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
Commerce is an activity. The clause presupposes that people are engaged in an activity which Congress is granted the power to regulate.
Has there ever been a prior law where Congress mandate that someone engage in Commerce?
So far I have not heard anyone give an example.
(The closest I have heard was an 18th century law that required persons who operated ships to cover medical expenses of injured seamen. The obvious explanation is that that was a condition of operating a ship in interstate or foreign commerce. The owner already determined himself to engage in that form of commerce i.e., shipping, and Congress regulated that activity by imposing a requirement on the owner. One always had the option of simply not operating a ship at all.)
volokh.com
TJ says:
Adam:
Everyone engages in consuming health care services, thus the “mandate” is merely a regulation of how those activities are conducted.
The confusion isn’t over the difference between activity and inactivity. It’s over why that distinction is relevant here, and how paying for health care out of pocket (or relying on the social safety net) is inactivity. Or more precisely, how it isn’t commerce.
1) Not everyone engages in purchasing health care services.
2) The international/interstate commerce clause does not grant the government the authority to boss any living person around because they they are fairly certain that everyone will engage in interstate commerce at some point in the future.
2) The distinction between inactivity and inactivity is relevant because commerce is a form of activity. To stretch the concept of interstate commerce beyond activity is to stretch it beyond all meaning. (it has already been stretch too far in my opinion)
3) Paying for health care out of pocket is not interstate commerce.
4) Relying on private charity care care is not interstate commerce.
5) Relying on state welfare is not interstate commerce.
6) The federal government has the authority to regulate its own programs (assuming they are constitutional) but this does not confer any authority to regulate anything else. The federal government does not get additional regulatory authority simply because its health care programs are poorly designed.
volokh.com
David M. Nieporent says:
Adam: Everyone engages in consuming health care services, thus the “mandate” is merely a regulation of how those activities are conducted.
1) No, they don’t;
2) No, it isn’t. (The mandate concerns health insurance, not health care.)
volokh.com
TJ says:
RJB:
But can you credibly commit to NOT purchasing health care services?Especially given that the professionals who discover serious illness or injury will be *mandated by law* to provide such care unless you are able to object and have good grounds for doing so.
Some people do for religious reasons. Some people have health insurance that does not qualify under the new health care legislation.
Hospitals that accept Medicare and Medicaid patients cannot deny health care to anyone. I don’t think that the Federal government’s decision to manage their health programs in this way affects the scope of the international/interstate commerce clause.
I know that there is currently a lot of political rhetoric that scapegoats the uninsured for all of the problems in the health care system. Whether or not this rhetoric has any truth is irrelevant to the scope of the international/interstate commerce clause
volokh.com
Brian says:
I’d say if you did Venn Diagrams of Activity and Voluntary Act, you get 98% or greater overlap. Activity v. Inactivity is a metaphysical, not semantic distinction. Just as on the most general level you have entities that act, within the genus of biological beings with consciousness & locomotion, you have instances where the entire organized living thing does something, and that’s called “activity.”
But you don’t need that level of theory to reach an activity/inactivity distinction good enough for legal purposes, just as you don’t need a theory of gravity to know that things fall down. It’s an easily graspable distinction; it cannot be learned, only un-learned, by legal theory.
volokh.com
cboldt says:
– Do you think Congress has the power to regulate or ban strikes? –
I don’t see how any power could ban a personal strike/quit the job. I think your questions are whether or not Congress can compel an employer to rehire workers who strike; and whether or not Congress can permit employers to terminate striking workers.
In that sort of context, my question would be whether or not Congress can compel an employer to employ, i.e., not “go out of business.”
volokh.com
TJ says:
Brian:
I’ll tell you something else.The majority or women make the affirmative economic decision not to purchase vibrators, and these individual economic decisions, in the aggregate, have a substantial (and deleterious) affect on the adult toy industry.That’s why I advocate the legislation which includes the Individual Vibrator Mandate as an uncontroversial expression of Congress’ power under the Commerce Clause to regulate adult toy industry.And to defend this law, I’ll call Mr. Kerr as my first witness.
Very true. And masturbation and sexual intercourse affect health which affects interstate commerce. Also the whether people are married or single can affect health, interstate commerce and which sex toys they choose to buy. So maybe marriage can be made mandatory or prohibited depending on the federal government’s interstate commerce goals.
volokh.com |
