The Difference Between "Activity" and "Inactivity"


By Hadley Heath

One of the issues raised in Tuesday's oral arguments in Richmond (Liberty University v. Geithner and Virginia v. Sebelius) was this: Does "regulation" presuppose that there is some "activity" being regulated?  In other words, can there be regulation without activity?  And how do we define activity?

Georgetown Law professor of legal theory Randy Barnett has a couple of blog posts at the Volokh Conspiracy that explain how this issue was approached in Tuesday's hearings.  Here's an excerpt:

Judge Motz said: “We know, as I understand it, we wouldn’t have a Commerce Clause argument if Congress had straight-forwardly set up universal health care and required everybody to buy, right?” To which Katyal said “sure.” Judge Motz then replied, “They didn’t want to do that though. That wasn’t, apparently — well in any event, for whatever reason, they didn’t do that, so we don’t have that situation. We have instead this, what we have.” After Katyal replied that there may have been any number of policy reasons for this choice, which are beyond the purview of the courts, and that the Supreme Court says the test for this court is evaluate whether Congress had a rational means, as long as Congress’s means are rationally adopted to the ends, citing McCullough and Comstock. To this she replied: But “for the past fifty years they have attached to that, to the regulation [unintelligable] activity, and that is what we arguably don’t have here. . . and which distinguishes this case from all those cases.” In response, General Katyal again voiced his disagreement that there was no activity here and asserted the Necessary and Proper Clause.

This whole exchange was very interesting and it was the point where General Katyal clearly had the most difficulty. I thought it was highly significant that Judge Motz returned to this question at the end of several hours of argument that had moved far away from the merits, indicating that this was sincerely troubling her. Now, I am NOT asserting that Judge Motz is going to vote to strike down the individual mandate as unconstitutional, though it is worth remembering that she was the judge who wrote the Court of Appeals opinion in Comstock holding that the sexual predator’s law exceeded the power of Congress under the Necessary and Proper Clause, which was then reversed by the Supreme Court. Perhaps she was merely seeking help in writing an opinion to uphold the mandate. But she was quite clearly and genuinely bothered – not baffled — by the lack of activity.

Barnett went on to write more about the distinction between activity and inactivity (“act-omission”) in another post.  (Disclaimer: If you aren’t a lawyer or law student, Barnett refers to you as an “ordinary” person below.  I’m sure he meant no offense):

Like much of the Socratic method, the law professor’s first year critique of the “act-omission” distinction exploits two conflicting intuitions held by ordinary people, which first-year law students still are when we get our hands on them. The first is the intuitive distinction between performing an action, and not doing anything, coupled with the further intuition that we should be held legally responsible for our voluntary acts and not for simply being alive. The second is the fact that a failure to act can sometimes result in the same consequences or effects as acting does. So if the law is aimed at avoiding these consequences or effects, then we should at least sometimes be held liable for our inaction. In short, the law professor confronts the moral intuitions of his or her students with a consequentialist critique. This conflict can then be heightened in class by pressing the fact that the law does — on relatively rare occasions — impose a “duty to act” on persons who are not acting and thereby hold them responsible for their inaction. But, and this is important, this consequentialist critique does not undermine the meaningfulness of the act-omission distinction itself, but instead it challenges the intuition that legal liability ought to turn on this distinction. Yet the legal distinction between acts and omissions lives on. As I once said when debating Orin, one would quite literally have to be deranged not to recognize the difference between acting and failing to act. While we may drive a very few law students mad, I believe that even most “A” students survive their exposure to first-year law professors with their basic intuitions largely intact. Some of them later go on to become judges.

So there is indeed a difference between doing something – like buying health insurance for example – and doing nothing.  I’m glad that’s settled.  Honestly, my thought while listening to Judge Motz was this: Of course the Founding Fathers didn’t give us guidance on activity as a prerequisite to regulation in the Commerce Clause.  They would think anything else to be preposterous!  And yet here we are, debating whether or not the government can regulate our “inactivity,” our “economic decisions,” or worst yet, our “mental activity.”  Hang on folks – it’s gonna be a wild ride.


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