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Monday, January 17, 2011

More on Boycotts and the Commerce Clause

At the Volokh Conspiracy, Ilya Somin, a tenacious opponent of the individual mandate, contends that boycotts are distinguishable from the individual mandate because boycotts are a form of economic activity, and thus subject to regulation under the Commerce Clause: 

Similarly, consumer boycotts also involve a concerted effort to pressure some firm or government into changing its policies. That differentiates them from an individual consumer’s decision not to purchase a particular product. Participating in a strike or a boycott surely counts as “activity” in both ordinary language and legal terminology.

Count me unpersuaded by this distinction.  Suppose someone forwards me an e-mail urging me not to buy the products of Widget Co. because the company engages in child labor overseas.  I then decide not to buy that company’s product.  Under Professor Somin’s view, both the e-mail and my decision not to buy the particular product are a form of economic activity.

If this is true, it is very hard to see why the individual mandate is any different.  Aren’t people who refuse to buy health care simply boycotting health insurance companies?  Why would it make any constitutional difference if they did so in concert with other people or what their particular reason is for doing so?  Indeed, one would think that a boycott of a company for political reasons, given the First Amendment, would receive more, not less, constitutional protection.  If Somin is correct that such boycotts can be prohibited (a surprising admission by a prominent libertarian constitutional theorist), then the individual mandate really is an easy case.

Posted by Carlton Larson on January 17, 2011 at 08:14 PM | Permalink


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Can it be that Somin is arguing that because a boycott is political, it is therefore economic? If so, this seems both wrong and a bit strange.

But I think this raises a deeper problem. The attempt to use the distinction between economic activity and economic inactivity as definitive for "commerce" fails, largely because in the world we live in (as opposed to the world we imagine in legal language), purchases and non-purchases are both connected to the greater social world that functions economically. The decision I make not to purchase the new car that is advertised during the NFL playoffs is in fact an economic decision because my social world includes efforts by others to get me to purchase it. Ford certainly sees my inaction as economic, directly affecting their bottom line as surely as another person's decision to purchase. Indeed, aggregated individual decisions to not purchase items substantially affect what sellers will produce and offer for sale. Similarly, my decision to not purchase Aetna's health insurance interacts with Aetna, and with other policyholders, in an economic manner. Perhaps my decision not to purchase items never in fact targeted to me and with which I have no reasonable contact or awareness amounts to "non-economic inactivity", but that is far less analogous to health insurance decisions. I imagine that very few economists (left or right) would see decisions by consumers to not purchase something as non-economic decisions. If we allow constitutional definitions of commerce to become too removed from both common economic understandings and from common social experience, then itself law will suffer.

Posted by: Jamie Fox | Jan 22, 2011 4:32:32 PM

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