Activity v. Inactivity


By Hadley Heath

Does the power to regulate "economic activity" include the power to regulate "economic inactivity"?  Judge Steeh in Michigan (in Thomas More Law Center v. President of the United States) gave this question no consideration, writes Stephen B. Presser, Professor of Law, Northwestern University.  Presser also points out that giving Congress the power to regulate all economic activity and inactivity would "make a mockery of the 10th Amendment." 

His full statement:

Judge Steeh’s decision is useful to those who might seek to challenge the constitutionality of Obamacare in that it quite broadly construes what constitutes permissible standing to challenge the measure (essentially anyone who might be adversely economically-effected by it), but it is disappointing in that it upholds the constitutionality (under the commerce clause) of the act’s individual mandate provisions (which require individuals to purchase health insurance or pay penalties for failure to do so).  Judge Steeh essentially held that if Congress can regulate wheat grown by a farmer for his own use or can regulate home-grown marihuana cultivated for one’s own use on the grounds that they affect interstate commerce, then surely one can require people to buy healthcare because that would affect the national health-care market.  Judge Steeh did observe that Congress cannot justify regulation of activities on the ground that they have an inferential or remote affect on interstate commerce (thus dealing with Supreme Court decisions that found unconstitutional the Gun-Free School Zones Act and parts of the Violence Against Women Act), but he gave virtually no consideration either to the questions whether inactivity (a decision not to buy health insurance) is different from activity (e.g. a decision to grow wheat or marihuana), or whether his decision would, in fact, give Congress the power to regulate virtually all economic activity or inactivity, which would, of course, make a mockery of the 10th Amendment.  This is a decision by only one District Court judge, and is  subject to reversal by the United States Court of Appeals for the 6th Circuit, or by the United States Supreme Court.  It is not binding in any other Federal District Court nor in any of the Courts of Appeals, and the friends of Federalism and the 10th Amendment will have to wait for another federal judge more carefully to reflect on the framers’ allocation of powers between the federal and state governments.  When that thoughtful reflection is engaged in, it is likely that Judge Steeh’s interpretation will not stand, and Obamacare is likely to fall.

To read the text of the 10th Amendment and other provisions of the Constitution involved in the health care lawsuits, visit our Health Care Constitutional Primer.


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