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The Action/Inaction Distinction in the Constitution

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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18 Responses

  1. Ken Rhodes says:

    Presidential review of a bill is even a little more convoluted than your description. Depending on the adjournment date of Congress, “do nothing” may be either affirmative or negative. (BTW, I’d recommend looking in Article I for that.)

    In a recent post, Glenn Cohen brought up Trolley Problems as illustrative of the ethical complexity of doing something vs. doing nothing. The presidential sign-veto-do nothing decision is reminiscent of that type of situation, and it can be seen to clarify the more general case, because it is clear that “do nothing” is, in fact, a *decision* with substantial results, irrespective of the simplistic activity of putting pen to paper. This viewpoint can also be applied to a variety of those ethics problems where “do nothing” seems different than “take action,” but where “do nothing” still involves making the crucial decision at the heart of the problem.

  2. William Baude says:

    The Due Process Clause’s reference to a “depriv[ation].” The government can’t take away life, liberty, or property, but it is allowed to let suffer people who don’t have it already.

  3. Michael Yuri says:

    What about the 13th Amendment?

    The bar on “involuntary servitude” places some limitations on forcing someone to perform physical labor (i.e. compelled action), but is no obstacle to prohibiting someone from performing physical labor (i.e. compelled inaction).

  4. Gerard Magliocca says:

    I think you’re right that if I keep someone as a prisoner (and don’t make them perform any labor) then that’s not a constitutional violation.

  5. Howard Wasserman says:

    Substantive due process is not violated by government inaction (failure-to-protect or stop harm) under DeShaney, subject to very limited exceptions.

  6. wb says:

    I’m actually a little confused by the parameters of the question. The Constitution regulates a huge number of (mostly-government) actions without regulating any sort of correlating inaction. No cruel-and-unusual punishments can be imposed, but it’s okay to be inactive while private parties impose punishments; private property can’t be taken but doesn’t have to be given; judicial salaries can’t be lowered but needn’t be raised.

    Rather than “almost never,” I would say that almost all regulations of action in the Constitution treat that action as different from some sort of corresponding inaction. Or am I misunderstanding what you are asking?

  7. Gerard Magliocca says:

    Well, those examples go to a constitutional violation, not to the issue of federal authority. The state action doctrine, for example, limits what Congress can do. Ditto for the Treason Clause. (My presidential review example, admittedly, doesn’t do that. It’s probably irrelevant.)

  8. William Baude says:

    But all of those examples limit what Congress can do in similar ways. Just as the state action doctrine is a limit on Congress’s power to enforce the equal protection requirement, the fact that the Due Process, Takings, and Cruel and Unusual Punishments clauses regulate action rather than inaction is a limit on Congress’s power to enforce those clauses too.

    (You say that they “go to a constitutional violation,” but so does the state action doctrine! That is the only reason it limits Congress’s authority.)

  9. Michael Yuri says:

    Gerard Magliocca: “I think you’re right that if I keep someone as a prisoner (and don’t make them perform any labor) then that’s not a constitutional violation.”

    The distinction I was trying to get at is a bit broader than that example. What I meant was that a public or private party might prevent someone from working in any number of ways, legal or illegal: e.g. firing or refusing to hire someone (private, legal), blocking the entrance to a place of work (private, illegal), placing licensing restrictions on a profession (public, legal). Each of these is an example of compelling someone not to engage in certain actions, and while they might in some cases be illegal for other reasons (e.g. racial discrimination), the Thirteenth Amendment has nothing to do with it. On the other hand, if a public or private party instead compels someone to engage in those same actions, the Thirteenth Amendment is directly implicated.

    This seems to me like a pretty good parallel to the distinction between preventing someone from purchasing certain insurance (e.g. by imposing regulations restricting what insurance may be offered), and forcing someone to purchase insurance.

  10. William Baude says:

    In response to the Update: The Constitution doesn’t provide very many direct regulations of private action. The 13th Amendment, as you noted, is one. But so is the 21st Amendment, which “prohibit[s]” the private “transportation or importation” of liquor in violation of state law– but it doesn’t apply to any *inactions* that violate state liquor law.

    Now, as to Congress’s grants of power, and whether they differentiate between private action than private inaction:

    Congress has the power to “punish[] . . . counterfeiting,” but has no enumerated power to punish the failure to counterfeit.

    It can also “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” but it can’t grant copyrights to people who *don’t* “Author[]” or “Invent[]” the work in question.

    I feel like I’m still misunderstanding the question here.

  11. Gerard Magliocca says:

    If Congress decided that we should all be counterfeiting (for some reason), would it be unconstitutional to make not counterfeiting a crime under the Commerce Clause?

  12. William Baude says:

    Surely it would. Congress can “provide for the Punishment of counterfeiting the Securities and current Coin of the United States,” but there’s not a word about *not-counterfeiting,* and I cannot think of any rational way that you could infer the power to punish non-counterfeiting from the power to punish counterfeiting.

  13. William Baude says:

    (The arguable way to distinguish the health care situation is to argue that “regulate” includes the power to forbid inaction, not just the power to punish action, and therefore is different from “provide for the Punishment of.”

    I don’t know if that’s a persuasive interpretation of the word “regulate,” but I’m not sure it’s that helpful to compare action and inaction across the different enumerated powers.)

  14. William Baude says:

    Sorry, I think I missed the Commerce-Clause emphasis of your previous comment.

    First, if the Commerce Clause were interpreted to cover counterfeiting crimes, wouldn’t that suggest that the Counterfeiting Clause was entirely redundant and nugatory?

    Second, I just don’t know a non-circular way to decide if the Commerce Clause extends to not-counterfeiting any more than to not-buying-insurance. If the action/inaction distinction is correct, then not-counterfeiting would also be beyond Congress’s reach under the Commerce Clause.

    More generally, I think this example helps to show why this sort of comparative inquiry may not get anywhere. There are many clauses that *could* be interpreted to draw such an action/inaction distinction, though they do not so.

  15. Gerard Magliocca says:

    Well, the current interpretation of the Commerce Clause does render most of Article I, Section 8 redundant.

  16. wb says:

    Agreed on that point, certainly. So maybe it’s a mistake to analyze modern Commerce Clause doctrine by looking to the text of the Constitution at all . . .

  17. Ken Rhodes says:

    I’m not an attorney, but I think I’m reasonably logical, and I find this whole question to be surreal.

    Googled “child neglect.” Found this, from US Dept of HHS:

    How Is Child Abuse and Neglect Defined in Federal Law?

    Federal legislation lays the groundwork for States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA), (42 U.S.C.A. §5106g), as amended by the Keeping Children and Families Safe Act of 2003, defines child abuse and neglect as, at minimum:

    (a) Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or

    (b) An act or failure to act which presents an imminent risk of serious harm.
    ========================
    So 42 U.S.C.A. §5106g defines “neglect” as FAILURE TO ACT which presents a risk of serious harm.

    Has anyone tested the constitutionality of making child neglect a crime?

  18. William Baude says:

    I looked quickly at that section of the U.S. Code and it isn’t obvious to me that child neglect *is* a federal crime. (That definition appears to be part of a program of research and grants to state child-neglect-prevention programs.) If it is a federal crime (outside of federal enclaves, perhaps), I don’t know whether it’s been justified on commerce clause grounds.

    It’s not an enumerated powers challenge, but there is an interesting (but inconclusive) case about whether or not the Eighth Amendment allows somebody to be executed for fatal child abuse of the failure-to-act variety.

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