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Thursday, November 10, 2011

The False Promise of the Action-Inaction Distinction as to the Constitutionality of Health Care Reform

Inspired by the D.C. Circuit decision this week, I thought I'd say a word about the constitutionality of the Affordable Care Act. There has been so much blogging about this question, that I apologize if someone else has already made this point.  Moreover, to give credit where credit is due, this post is the outpouring of a conversation between Einer Elhauge, Mark Hall, and myself when Mark presented at our health law workshop.

The action/inaction distinction has captured the mind of many people who are debating the constitutionality of the individual mandate.  I want to suggest why it has drawn so much attention, and then suggest that this is in error. The real question is a search for a limiting principle. Can the government make you eat broccoli as it is sometimes put (though more correctly perhaps it should be said “buy” broccoli not eat it... the mandate requires no one to consume health care, just to have health insurance to pay for it if they want it.) The action/inaction distinction is thought of as being a possible limiting principle. But, in fact, it is not, because the government could always achieve nearly identical results by conditional mandates.

Conditional on ever having consumed health care in the last 10 years, you must have health insurance (or buy broccoli).

Conditional on having bought groceries in the last 10 years, you must buy broccoli (or health insurance)

Conditional on engaging in any interstate commerce, you must buy health insurance (or buy broccoli).

To people who are troubled by the ACA, these examples of hypothetical mandates remain just as troubling even though they are regulating commercial action not inaction.  That suggests that the activity/inactivity line itself is not a useful limiting principle, and is actually more of a red herring in this debate. 

Am I wrong?

Posted by Glenn Cohen on November 10, 2011 at 08:10 AM in Constitutional thoughts, Current Affairs | Permalink


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David -- thanks for sharing this. I had missed it when it came out. As always I learn from your work, and I feel more confident in my own views when I see you put them forward as well (and usually with more eloquence).

Posted by: I. Glenn Cohen | Nov 11, 2011 10:58:04 AM

You've got it exactly right. I discussed the problems with the activity/inactivity distinction in Southern California Law Review Postscript earlier this year, at http://lawweb.usc.edu/why/students/orgs/lawreview/documents/SCalPostscript84_Orentlicher.pdf

Posted by: David Orentlicher | Nov 10, 2011 9:28:20 PM

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