The Private Action Requirement
I’m going to break my “don’t-post-twice-in-one-day” rule because something is bugging me. On Monday I suggested that one way to assess the arguments being made against the constitutionality of the individual health insurance mandate was to look at constitutional text and doctrine for other places where a distinction is made between action and inaction. The comments to that post, rightly I think, said that this basically won’t get us anywhere.
Another idea occurs to me though. Folks like Randy Barnett rely heavily on the idea that congressional regulation of inactivity (or commercial coercion) is unprecedented under the Commerce and Taxing Clauses. But isn’t it is equally unprecedented to establish a “private action” limitation on congressional authority pursuant to those provisions. Where does that doctrine come from? There’s no case law to support the concept, for example. Thus, each side in the litigation wants courts to do something new–either by upholding or invalidating the individual mandate. It’s a jurisprudential wash.
The closest analogy is the state action requirement, which developed after Reconstruction and is still controversial. Some people think it was a proper interpretation of the Fourteenth Amendment. Others think that it was a distortion designed to protect federalism at the expense of the text. Now people might say that, even if it was a distortion, it should be retained due to stare decisis concerns. But extending the doctrine into the private realm (again to protect federalism) is something else. If you think that the state action doctrine is correct on the merits, then I think the argument for a related limitation in the Commerce Clause makes more sense. If you don’t believe that the state action doctrine is sound, then you should have the same skepticism for a private action doctrine.