The Action/Inaction Distinction in the Constitution
I noted in a prior post that a crucial issue for the constitutional challenge of the individual health insurance mandate is whether there is a meaningful distinction between the regulation of activity and inactivity. Opponents of the mandate are saying that there is and that making folks buy insurance when they do not want it constitutes the regulation of inactivity.
One way to approach this problem, I thought, was to see where a distinction is made between constitutional action and inaction. The answer is–almost never. Here’s what I came up with:
1. The State Action doctrine under the Fourteenth Amendment.
2. Presidential Review of a bill. (Article II says that the President can sign a bill, veto a bill, or do nothing and let it become law without his signature. Two actions and one non-action.)
3. The Treason Clause refers to an “overt act” as necessary proof (though a confession in open court will also suffice), which clearly suggests that an omission is not enough.
Can you come up with anything else?
UPDATE: Perhaps a better way to frame this question involves asking where the Constitution makes a distinction between private action and inaction, which is what the challenge to the individual mandate involves. In that case, I think that the Thirteenth Amendment example given in the comments is the only one.