Conservative Legal Scholar: Congress Can Regulate Inactivity, And Has

Conservative Republican, and NYU Law Professor Rick Hills pours cold water on conservative celebrations about the Florida ruling on the Health Care Law:

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."

This would seem to make sense to me. First off, uninsured people are expensive- to the rest of society. So their inactivity has great impact on the rest of us- raising our premiums, raising our taxes, and adversely impacting our care most likely. Sure, there are those who don't buy insurance and take immaculate care of themselves- a minority of them. For the most part though, they are impacting the commerce of us all, or interstate commerce. The argument that inactivity isn't a part of interstate commerce is pretty weak to me, especially in this specific case.