Considerable attention has been paid to two recent decisions invalidating part of the Obama health care reform statute on constitutional grounds.
Federal District Judges Henry Hudson in Virginia and Roger Vinson in Florida found that Congress exceeded the scope of its power by requiring a person to buy health insurance or pay a penalty tax in lieu of that insurance.
Both judges relied heavily on a distinction between regulating activity — which they agreed Congress can surely do based on its Commerce Clause power in Article I of the U.S. Constitution — and regulating inactivity.
In Judge Hudson’s view, Congress can regulate only "some form of action, transaction, or deed." Conceding that Congress ordinarily has broad power to regulate, Judge Hudson nonetheless maintained that this power could only be "triggered by some type of self-initiated action." Any parent who has dealt with a teenager, for instance, knows how often and how frustratingly any attempt to draw a bright line between action and inaction breaks down.
As a matter of our constitutional history, the supposed dichotomy between action and inaction is wrong-headed and dangerous for two basic reasons: First, it represents a frightening throwback to the early decades of the 20th century when federal courts enthusiastically went about striking down federal laws against child labor, statutes regulating working hours and conditions and other kinds of reform legislation. In those days, judges relied on purportedly clear lines between what they called manufacture and commerce, for instance, so that a company that controlled 98 percent of the sugar refining capacity in the entire United States could not be regulated by the federal government because it purportedly engaged in manufacture, but not commerce.
More alarming, however, is the extraordinary judicial amnesia embodied within these two recent decisions invalidating the Obama health care reform statute. The arguments accepted by these two judges entirely overlook a crucial counterexample: a historic moment when Congress used its Commerce Clause power explicitly and directly to force action by individuals who assuredly did not wish to act — and who loudly cloaked their refusals to act in the garb of constitutional rights.
I am referring to the owners of Ollie’s Barbecue in Alabama and of the Heart of Atlanta Motel in Georgia. Claiming states’ rights as well as their own rights as individuals to associate only with those they wished — as well as their right to make their own business judgments — these owners refused to serve food or rent rooms to black people. In unanimously upholding the great Civil Rights Act of 1964, however, the Supreme Court emphasized that Congress assuredly has the power, based on the Commerce Clause, to compel segregationists to act within the law of the land.
And, as appealing as it might be to assert that no one has power to make me do something I do not want to do, it turns out that Congress can compel reluctant food and drug manufacturers to disclose ingredients in their products and to adopt safety measures, for example, even when they would prefer not to act.
In fact, from the founding of the American Republic, governments could and did compel a broad range of conduct. Indeed, most of us probably would be appalled if government officials did not have the power to require immunizations and quarantines when health authorities proclaim that they are necessary for the common good, even if some citizens protest loudly that they simply want to be left alone.
Such arguments are also usually couched in terms of states’ rights, familiar from the earlier, vehement defense of segregation. Yet there are countless examples that undercut District Judge Vinson’s claim in the Florida case that a person could simply stop doing business to avoid the reach of the 1964 Civil Rights Act while, he argued, the health care reform does not include a similar ability to remain passive without paying a penalty. This attempted but unconvincing "love it or leave it" distinction is more blunderbuss rhetoric than genuine constitutional analysis.
Governmental units at all levels still penalize us for not clearing our walks or for not having the required registration and insurance for our cars, boats, and planes. Aspects of the Hawaii health plan mandating employer payments for employees who work 20 hours or more served as a model for the new federal plan, just as mandatory elements of federal Social Security have been copied by the states.
Much as we might want bright lines, few, if any, exist to answer complex constitutional problems. As with handling teenagers, wisdom, hope and careful attention to context remain vital tools for judgment — even by judges.