When Am I Not Doing Something?

-- Posted by Neil H. Buchanan

The U.S. Supreme Court has agreed to hear a challenge to the Patient Protection and Affordable Care Act of 2010 -- also known as the ACA, or "the health care law," or (from more hostile quarters) "Obamacare." Professor Dorf's post on this blog last Monday summarizes the issues and analyzes the key points of the case. Last Wednesday, I was interviewed for a news piece discussing the various questions raised by the case. (If the video is ever posted online -- which is not guaranteed -- I will post a link on this blog.)

To prepare for the interview, I reviewed the issues that were so hotly debated earlier this year and last year. I do not claim to have read everything that has been written on this heavily debated topic -- far from it, given the demands of my "day job" -- but I will offer a few thoughts here that I have not yet come across in my perusal of the issues (or that at least have not been the focus of debate).

One of the major points on which all seem to agree is that the success of the case could ultimately ride on a few formalities, such as whether Congress called the penalty for not buying health insurance a "tax." A second point on which everyone seems to agree is that the Supremes will have to make some new law in order to strike down any part of the ACA. People disagree, of course, about the wisdom of doing so, but the case is a slam dunk under current law. For the law to be struck down, given that there is no "activity/inactivity" distinction under current law, the Court would have to create such a distinction. It would then have to hold that an individual's decision to risk the need to use an emergency room as an uninsured person is not "activity" affecting interstate commerce, under whatever definition the court invents.

All very familiar territory. As I was thinking about the possible questions that I might be asked, however, I began to think a bit more about the objection to "forced activity" that lies at the heart of the challenge to the ACA. The claim, from people like Sen. Orrin Hatch, is that there is a profound distinction between Congress regulating things that one has voluntarily decided to engage in -- e.g., passing laws regulating the content of drugs that one might (or might not) choose to buy -- and an overweening Congress telling people what they have to do in the first place. If I do not want to buy health insurance, Hatch and others say, the Constitution protects me from being forced to do so by Congress.

This framing of the issue has been surprisingly successful, with the Administration struggling to justify this supposed infringement on people's right to "do nothing." Even so, there are a large number of things that governments can currently force people to do in the United States. (Note that I say "governments," not the federal government, because I understand the objection as being based on freedom from compulsion, not a federalism argument.)

Here are four examples: (1) Parents can be forced to send their kids to school, or to engage in another activity (home schooling) that some parents might find an impingement on their freedom to do nothing, (2) Children must be vaccinated against various diseases, (3) a person can be forced to leave her home and serve on a jury, and (4) adults can be drafted into the armed services and sent to die on a foreign battlefield. (I am sure there are other examples; I wish I had noted the date of a piece on "The Colbert Report" that provided a longer list.) The consequences of not doing these things can be severe, up to and including serving prison time.

I am sure that there are those who would view all of these examples as illegitimate actions by the government. The opponents of the ACA claim, however, that the "individual mandate" (which is itself a brilliantly Orwellian label for a financial penalty) is uniquely awful, opening up new vistas of government overreach into people's lives. If the Constitution allows governments to put ideas into one's children's minds and needles under their skin, and to send adults into courtrooms and into the line of enemy fire, it is hard to see how it is a game-changer to pass a law giving people a choice between buying health insurance or paying a fee (or tax, or penalty, or fine, or whatever one wants to call it).

Last week, in a NYT op-ed, Einer Elhauge of Harvard Law School took on the supposedly strongest version of the inactivity defense: "The Broccoli Test." Can Congress force us to eat broccoli, for our own good? Elhauge answers no, for reasons that need not be repeated here. The broccoli test, however, is important because it is apparently supposed to be a conversation stopper, exposing the slipperiness of the slope onto which we have precariously stepped. "If Congress can't force you to eat broccoli, it shouldn't be able to force you to buy or sell broccoli, either." Taking that next step, as Elhauge persuasively argues, makes less and less sense upon further scrutiny, which ultimately exposes the attacks on the ACA as yet another case of elevating form over substance.

Can the government force me to buy broccoli? Would it be unconstitutional for Congress to pass a law saying: "Every individual must buy one pound of broccoli each month"? If I do not want to go out and buy things, one might argue that Congress is not allowed to force me to do so. Would it be constitutional for Congress to pass a law requiring that people who go to stores for other reasons also buy broccoli? People are not choosing to buy broccoli, so maybe their "activity" in going to the store is not the same "activity" that Congress would mandate in buying broccoli. By this reasoning, that is still "regulating inactivity," which is (according to the ACA's critics) a unique violation of our freedoms.

Can Congress require that vendors sell broccoli? They are engaged in the activity of selling things. Even so, one could claim that Congress is still requiring an activity that is different from the activity that the owner of the store is choosing to do without compulsion. If that is true, however, then surely it cannot be the case that Congress could require a store to sell a pound of broccoli with every purchase, could it? (As an administrative matter, one could opt out of the broccoli add-on by presenting evidence of having already purchased the required amount of broccoli. Or maybe one could pay a fee to the government to receive a waiver. We could even call that a tax.) If the Constitution protects inactivity, then it would not be permissible for Congress to force people to buy or sell things that they do not want to buy or sell.

How, then, do we explain Congress's unchallenged ability to require that cars be sold with air bags, or to require that drugs have certain ingredients, including some that the person might not care to buy? Customers might not want to own air bags, and vendors might not want to be in the business of selling air bags. Yet there is no known Constitutional violation in Congress's laws that require that all kinds of goods and services be sold with (and without) various ingredients, processes, complementary goods, and so on. Congress might not have passed a law saying, "You must buy air bags," but it has told sellers, "You must sell air bags." And even people who do not buy cars must buy other items that can include required ingredients. Congress could, apparently, force anyone to buy broccoli by requiring that sellers pair broccoli with everything that a person might buy.

I do not claim to have found the magic key to understanding the ACA challenge. I am, however, genuinely flummoxed by the ferocity of that challenge, especially the hyperventilated claims that the "buy insurance or pay money to the government" required choice breaks new ground in violating our freedoms. I could easily imagine an argument that says that anything a government does is a violation of freedom, but that is not what we are hearing in this debate. I could also imagine an argument that says that the ACA shows just how far things have gotten out of hand, but -- even though we do hear that argument in some contexts -- that is not the basis of this legal challenge. The legal challenge to the ACA is based on the argument that, if we do not stop this, then Congress will be free to require things that it cannot currently require.

Congress can already send us to die in battle. It does not currently do so, because the people decided forty years ago that they would not support a Congress that continued the military draft. Congress does not require people to buy broccoli, not because it would be unconstitutional, but because it would be unpopular.

More to the point, if Congress were to force people to buy broccoli, that would not be some kind of unique expansion of government power. It would be a straightforward application of the powers that currently exist and affect our lives every day. Changing that set of powers cannot be done effectively through the activity/inactivity distinction -- a distinction that would do nothing to limit Congress's power to regulate our lives.