One Hand Clapping: Saying Hello, and the Activity-Inactivity Distinction

Hello, PB readers, and thanks to Dan and the crew for having me back. The last time I blogged here, I was an associate professor of economics at the University of Arizona. Since then, I have regressed, progressed, and become a rising 2L at Yale.* So while I'm no longer a "prawf," I guess I fit the "law" part of the blawg better than I used to. I'll try not to embarrass myself too much on that front over the next month. But since I'll probably fail in that endeavor, I've decided to ease into this round of posts by making a simple economic point about the supposedly important distinction between activity and inactivity that undergirds much of the ACA litigation.

To put it simply, the activity/inactivity distinction makes sense only if one hand can clap.

The amicus brief filed by Ilya Shapiro on behalf of the Cato Institute and Randy Barnett in the Sixth Circuit's Thomas More Law Center, et al., v. Barack Hussein Obama (gotta get that middle name in there!) tells us that

If allowed to stand, the individual  mandate would collapse the traditional distinction between acts and omissions by  characterizing a failure to act as a “decision” not to act—thereby transforming  inactivity into activity by linguistic alchemy.

I doubt it's an accident that this sentence reads so defensively. If "inactivity" is just the flip side of "activity," then it must be impossible to regulate any activity without also regulating inactivity. And of course, that conclusion is lethal to the "inactivity" argument, because even Cato and Randy Barnett concede that the Constitution gives Congress the power to regulate some things. Therefore, either inactivity has a life separate from activity or the Cato/Barnett argument is specious. 

So let's linger a bit on the sentence above. It states that the mandate cannot be allowed to stand, because otherwise acts and omissions would become one and the same. But so what? Compare the act of defrauding someone by telling them that your car works great, when you know it won't start, to the omission of remaining silent in response to the person's statement that "I will assume this car works great, and buy it from you for your asking price, unless you tell me otherwise before we execute the purchase contract." Does anyone think anything important turns on the distinction between "act" and "omission" here? Yes, we use different words for the fraudulent behavior in the two examples, but it strikes me that the reason is simply to avoid having to argue with linguistically gifted fraudsters (or their attorneys) that remaining silent is not an act. 

In any event, the need to avoid collapsing the act-omission distinction is thin gruel as a reason for not "characterizing a failure to act as a 'decision' not to act." It's not alchemical, but rather common sense, to point out that any "decision to do" something is a "decision not to not do" the same thing. Just as any "decision to not do" something is a "decision not to do" it. If I save money by stuffing it in my mattress, then I haven't saved it by buying financial instruments, and I haven't spent it on consumption. If I choose to spend time in leisure activities, I don't work for pay; indeed, anyone who has thought carefully about models of labor supply that take account of home production and child care understands that the most tractable definition of "leisure" in microeconomics is time not spent working. While we're at it, if I grow my own wheat for my own consumption, I haven't sold it. 

I understand that these are not legal arguments as such, but the law isn't blind to common sense. And common sense dictates that decisions are choices, and that meaningful choices necessarily involve more than one option. So it is impossible to "decide to be inactive" without rejecting some other course of...well, action. In this sense, familiar to anyone who understands the concept of opportunity cost, any regulation of any activity also regulates inactivity.

 

*I admit that if I'd known this guy was leaving Tucson, I might have stayed--the equilibrium price of good food in the Old Pueblo has surely dropped as a result.