I am a broken record, but here is the essential move in the Cato Institute’s amicus brief in Thomas More Law Center v. Obama, which seeks reversal of district judge Steeh’s order granting Obama’s motion to dismiss:
In Raich, the Court identified the doctrinal distinction between economic and non-economic activity by looking back at all the substantial effects cases it had previously decided and found that “the pattern is clear.”…Similarly, the leading Commerce Clause and Necessary and Proper Clause precedents establish a doctrinal line between activity and inactivity, even if that line has heretofore escaped articulation because no precedent has presented the distinction as sharply as this case (pp. 10-11).
The key disanalogy is that, unlike the supposed “doctrinal line between activity and inactivity,” the economic/non-economic distinction identified in Raich had not previously “escaped articulation.” Rather, it is articulated in the contrast between, on the one hand, Lopez and Morrison and, on the other, earlier Commerce Clause cases such as Wickard, NLRB, etc.
Lopez and Morrison identified two kinds of conduct that Congress does not have the power to regulate. The earlier Commerce Clause cases had identified various kinds of conduct that Congress does have the power to regulate. The Raich Court therefore had the raw materials from which to identify a distinction; whatever the conduct at issue in Lopez and Morrison had relevantly in common with itself, but not with the conduct at issue in the earlier Commerce Clause cases, was what all conduct not reachable through the Commerce Clause had in common. The Supreme Court decided that the relevant distinction was between economic and noneconomic activity. But the labels (“economic” and “noneconomic”) it gave to this distinction are not meaningful when severed from the cases that give meaning to “economic,” by giving paradigm instances of what the Court regards, and does not regard, as falling under the label.
By contrast, as Cato’s brief admits, any distinction between activity and inactivity “has heretofore escaped articulation.” The Supreme Court has never given us a paradigm case of what counts as “inactivity.” Thus, unlike the economic/noneconomic distinction, the activity/inactivity distinction is entirely without doctrinal meaning. We have no paradigm cases of what counts as inactivity, and so no way of delineating it from its contrast.
At root, the problem is conceptual. In order to articulate a doctrinal distinction you need to have cases that are relevantly distinguishable. But, by Cato’s own admission, there are no distinguishable cases along the activity/inactivity axes. It is therefore not only wrong, but impossible for “the leading Commerce Clause and Necessary and Proper Clause precedents establish a doctrinal line between activity and inactivity.”
What’s going on here is that Cato has identified a distinction that is of general legal and moral significance – the act/omission distinction. It has further noticed that, felicitously, the word “activity” can be contrast with “inactivity.” Because (i) we – our community of speakers – don’t have a fully worked out theory of what counts as activity and inactivity, and (ii) the act / omission distinction is roughly serviceable* as such a theory, Cato has been able to pour the act/omission distinction into the proclaimed activity/inactivity distinction. It has thereby used a lucky linguistic break to present the Supreme Court as having committed itself to a distinction that has enormous normative relevance in other areas of the law. In other words, it has predicated of the Supreme Court a distinction that the Supreme Court might well have committed itself to. The effect is to make it slightly more difficult to notice that Randy Barnett just made it up.
* I say “roughly serviceable” because inactivity doesn’t require total passivity. Somebody lazing about on the porch all day, smoking a pipe, might be described as having entered a period of “inactivity” despite the fact that he is doing an action. Similarly, one might describe a newborn baby as having entered a period of “activity” – kicking, thrashing, wailing – despite the fact that he is not yet an agent. In fact, the real commonsense distinction between activity and inactivity (as opposed to the Supreme Court’s distinction between activity and inactivity, which is nonexistent) is between that which has meaningful (substantial?) effects and that which can be safely discounted. Somehow I don’t see Cato adopting that conception of the distinction.