The challenge to the constitutionality of the individual mandate – Obamacare’s central feature, without which the whole regulatory scheme collapses (practically speaking, though I agree with Judge Vinson that it also can’t be severed as a matter of law) – boils down to whether, under modern constitutional doctrine regarding what Congress can do under the guise of regulating interstate commerce, the government can force “inactive” people into a particular action, namely buying health insurance.

That is, while cases like Wickard  (Congress can force farmer to meet quota and bring crops to market) and Raich (Congress can stop wholly intrastate growth and consumption of marijuana) – moving from wheat to weed – are disconcerting for those of us who see limits on federal power, there is a qualitative difference between regulating or prohibiting existing economic activity and mandating that someone engage in such activity.  When Randy Barnett (who argued Raich) first articulated that distinction and labeled the new assertion of federal power “unprecedented,” that’s what he meant: Congress has never forced people to engage in economic activity.  Not during the New Deal – nobody had to become a farmer or buy wheat – nor during the Civil Rights Era – if you didn’t want to serve blacks, you could shut down your restaurant or hotel.

The “activity/inactivity” distinction thus becomes the last straw holding back a general federal police power that would allow Congress to require anything of the citizenry so long as it was part of a national regulatory scheme.  No enumerated power to require people to buy Chevys?  No problem, we’ll have a full-scale auto bailout that only works if people have to buy Chevys.  No enumerated power to require people to take out Fannie Mae mortgages?  No problem, we’ll have a “National Housing Market Recovery Act” that only works if people have to do just that.  You don’t have to invoke broccoli or asparagus to make the point; the “broccoli mandate” is used so often only because, if anything, requirements to buy healthy foods and join gyms would be more closely connected to the goal of reducing taxpayer spending on health care than the individual health insurance mandate.

In any case, I won’t go on about activity vs. inactivity because you can read all about it in our latest brief and also in a fascinating  Volokh Conspiracy debate among Orin Kerr, Jon Adler – both of whom will be contributing to this year’s Cato Supreme Court Review – and Randy Barnett:

1. Orin notes that the Fourth Circuit judges were “baffled” by the activity/inactivity distinction;
2. Jon replies that he’s baffled that anybody could be baffled by that;
3. Randy offers a different take on the judges’ concerns;
4. Orin discusses a possible analogy of the definition of “activity” to its common-law equivalent, the “actus reus”;
5. Randy issues a rejoinder to Orin’s analysis;
6. Orin clarifies the issue.

Fascinating stuff, and a discussion that will continue – and not just on the VC.