Posted at 1:12 PM ET, 02/ 2/2011
Conservative legal scholar: We already regulate inactivityBy Greg
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."
The Plum Line - Conservative legal scholar: We already regulate inactivity