A One-Way Ticket
posted by Gerard Magliocca
One of the arguments made in favor of the activity/inactivity distinction in the individual mandate litigation is that adopting this approach will not call into question the rest of the Supreme Court’s Commerce Clause jurisprudence or undermine any other federal statutes. The only federal statute that has ever attempted to regulate inaction under the commerce power is the Affordable Care Act, so this is that only law that would run afoul of the principle.
This is what makes me skeptical about the distinction. While the inactivity/activity distinction sounds neutral, it’s designed to knock out one law and one law only. Courts often deride “one-way” tickets as result-oriented, and I’m not sure why the same isn’t true in this case. The situation would be different if there was an established argument for drawing the inactivity/activity line before the enactment of the individual mandate. As far as I know, though, nobody thought of this until last year (or maybe 2009).
I now promise to refrain from any further individual mandate posts until: (a) the Fourth Circuit issues its opinion, or (b) the Supreme Court grants cert.
August 17, 2011 at 7:49 pm
Posted in: Constitutional Law, Uncategorized
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Responses (6)
TJ - August 17, 2011 at 10:57 pm
By itself, the fact that the law is unique doesn’t make a ruling striking it down a “one way” ticket. Marbury v. Madison struck down a single law, but we wouldn’t call it a one-way ticket. Rather, I would think a one-way ticket is something more like Bush v. Gore, where the court is trying to limit the prospective effect of its holding.
The way that would happen here is if the Court issues an incredibly narrow holding that will be easy to circumvent in the future (e.g. by simply adding some “findings of fact” or simply reciting an interstate commerce nexus), where a cynic would imagine that the Court is only trying to hand the Republicans a political victory. But a holding that says “no federal mandates, ever” is not a good-for-one-ride ticket even if it only currently affects one law.
Brett Bellmore - August 18, 2011 at 6:19 am
No, I would not say it’s designed to stop just one law. It’s also designed to stop all the laws that would follow that one law, should it be approved of by the Supreme court.
If the Court decides that Congress can regulate inactivity, Congress WILL regulate inactivity. And it won’t just be one law we’re faced with. This may be Congress’ first attempt to expand it’s power in this direction, but if the attempt is successful they won’t stop here.
Shag from Brookline - August 18, 2011 at 6:59 am
I’m surprised that Brett did not cite Plessy v. Ferguson in support of his view. As for “inactivity,” Brett continues its demon-stration with his insufferable suffering from “Wick-burn.” A little balm provided by ACA (aka “Obama Cares”) may provide a cure for Brett.
BDG - August 18, 2011 at 9:44 am
Of course,the claim that the ACA is unique in penalizing inactivity is ridiculous, given the vast array of existing provisions that impose higher costs on those who fail to heed the government’s preferences. (E.g., if you don’t donate to charity, you will pay higher taxes this year.) So kind of a moot point.
Bill Reynolds - August 18, 2011 at 11:53 am
Like cases must be decided in like fahion. “Enough is enough” is not a principled distinction. Rather, there must be a reason given why activity can be differentiated from inactivity, and that reason must relate to the justification upholding the activity cases. if that is not done, then treating the two differently is unprincipled. (And I do not see how the two can be ditinguished.)
Brett Bellmore - August 18, 2011 at 12:55 pm
“(E.g., if you don’t donate to charity, you will pay higher taxes this year.)”
If they’d increased taxes generally, and then provided a tax break for those who bought insurance, they might have gotten away with it. Instead they wrote into the law an explicit penalty.
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