While on a Times jag and to follow – hopefully for the only time (it is, necessarily, a somewhat pitiful practice) – Cafe Hayek’s fairly robust tradition of self-publishing letters to the editor, here’s a version of one I sent to the New York Times.
Kevin Sack’s “Terrain Shifts in Challenges to the Health Care Law” suggests that Commerce Clause case law can support a distinction between “activity” (actions) and “inactivity” (omissions). But the only Commerce Clause case in which the Supreme Court has motivated its use of the term “activity” rejects that distinction.
In United States v. Wrightwood Dairy Co. the Court explained: “The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution…Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.”
If Congress can only regulate actions that, in aggregate, substantially affect interstate commerce then, contra Wrightwood, its power to regulate interstate commerce is not plenary, but is limited to regulations of interstate commerce that can be accomplished without regulating intrastate omissions that substantially affect interstate commerce.
The presumption that there is an activity/inactivity distinction lurking within Commerce Clause case law thus reduces Wrightwood – the case that explains why Congress’s power reaches intrastate “activity” – to incoherently asserting both that Congress’s power to regulate interstate commerce is, and is not, plenary. The presumption is therefore predicated on a misunderstanding of constitutional law.
Update: I should add that it’s no objection to note that because the Court has recently limited the intrastate activities reachable under the Commerce Clause to those that are “economic” in nature, therefore the Court has tacitly rejected the view that Congress’s power to regulate interstate commerce is plenary. The right interpretation of Lopez and Morrison is that they clarified what kinds of activities have a substantial effect on interstate commerce (and so what kinds of activities a plenary power to regulate interstate commerce can reach).
It makes sense that only economic activities could have a substantial effect on interstate commerce (largely because that’s how Commerce Clause jurisprudence defines “economic” activities); it makes no sense – as the instant controversies make clear – to say that omissions (understood to include decisions to refrain from doing things) cannot obstruct Congress’s plenary power to regulate interstate commerce. (The contrary proposition is so shamelessly off the wall that, as Judge Hudson artlessly put it, those opposed to the ACA, such as Virginia, “do not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce” (p. 18). I assume what Judge Hudson was trying to say is that Virginia does not challenge the aggregate effect of what is being regulated by the ACA on interstate commerce.)