28 Months Later
Since I’m stuck at home while the ice storm pounds Indiana (1.5″ of sleet so far), let’s try out this hypothetical. It’s inspired by the Hall article on the individual mandate.
Suppose this summer an epidemic breaks out that involves a contagious pathogen. The disease does significant damage to interstate commerce because people die, others miss work, and quarantines must be imposed in an attempt to contain the outbreak. Within a year, though, a vaccine is developed by Pfizer and they get a patent. Lots of people buy the vaccine and have it administered. Lots of people do not. They’re concerned about possible side-effects (including getting the disease). Their failure to take the vaccine, though, means that the menace cannot be eradicated.
To end this plague once and for all, Congress passes a statute under its Commerce Clause authority that requires everyone who has not taken the vaccine to buy it from Pfizer and get their shots. Compulsory vaccination at the state level has already been upheld by the Court, so there is no liberty interest involved. The only valid constitutional claim is that Congress can’t compel activity or regulate inactivity under the Commerce Clause. Would (and should) this statute be upheld? I think that the answer is yes.
This points up a big problem with the activity/inactivity distinction. It does not take externalities into account. In other words, no matter how much my inactivity (or the aggregated inactivity of the similarly situated) burdens interstate commerce, Congress cannot respond. Now if you think that the hypothetical law is constitutional, then all you’re doing is judging the necessity of congressional action. It’s not a firm line–it’s just a balancing test. Now perhaps heightened scrutiny should be given to the regulation of inaction (that is one way to square the circle), but that’s not what the opponents of the individual mandate are arguing.