Conservative legal scholar: We already regulate inactivity

By Greg Sargent

In an interview with me just now, a conservative law professor made an interesting case for the individual mandate: In multiple cases, he said, the federal government has already regulated "inactivity," and it has passed muster with the Constitution.

The cases this professor cited: Jury duty, and the draft.

New York University law professor Rick Hills describes himself as a "registered Republican and outspoken conservative," but he maintains that the primary argument conservatives use against the mandate -- that it's unconstitutional to regulate economic inactivity by forcing people to buy insurance, as Judge Vinson ruled -- is bunk.

Hills frames the question this way: If the federal government can't tell people they don't have the right to refuse to buy insurance, then why was it okay for the federal government to regulate people's "pacifism," i.e., their refusal to fight in wars? Why is it okay for the government to regulate people's refusal to serve on juries?

"If you can regulate inaction to raise juries, and you can regulate inaction to raise an army, then why isn't there equally an implied power to conscript people to buy insurance, to serve the goal of regulating the interstate insurance market?" Hill asks.

The draft was held up as constitutional by the Supreme Court, but not under the "commerce clause" or the "necessary and proper clause," which are being used to defend the individual mandate. But Hills said the larger point stands: Congress has the power to ban inaction.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

Hills took the comparison a step further, in order to debunk the claim by some conservatives that economic inactivity is too removed from commerce -- or economic activity -- to regulate.

"If economic inactivity is too far from commerce to regulate, then why isn't defense inactivity -- also known as pacifism -- too far from defense to regulate?"

"We can forbid pacifism in order to raise an army," he concluded. "So why can't we forbid economic inaction in order to regulate interstate commerce?"

