Legal Commentary

Opponents of the individual mandate assert that under the Commerce Clause, the federal government can regulate only activity, not inactivity.

Yet the federal government regulates inactivity under the Commerce Clause all the time.  Consider federal labor legislation that, under certain situations, prohibits employees from striking.  The employees aren?t doing anything ? they?re doing nothing, and it?s precisely this inactivity that Congress prohibits.  The employees are compelled to engage in economic activity with another private party.  True, this power rests on direct regulation of interstate commerce, and not the substantial effects test, but it does suggest that the activity/non-activity distinction is not fundamental to Commerce Clause jurisprudence writ large.

Moreover, consider the case of ?economic boycotts,? when people refuse to do business with other parties.  They are literally doing nothing, yet our widespread terminology explicitly describes this inactivity as ?economic? and assumes that the boycott will have an economic effect.  The Supreme Court itself recognized this when it rejected Massachusetts? refusal to do business with companies that did business in Burma.  Massachusetts was simply refusing to engage in certain economic transactions, yet the Court uananimously held that this inactivity violated the Foreign Commerce Clause.  If states can be ordered to engage in economic transactions under the Commerce Clause, it is not much of a stretch to conclude that the same power applies to individuals.