Can Idleness Be Commerce?

The key question in determining the constitutionality of ObamaCare's mandate to purchase health insurance is whether or not Congress can regulate inactivity under the Constitution's Commerce Clause, which gives Congress the power to "regulate commerce…among the several States." Previous cases that tested the limits of the Commerce Clause have all involved the regulation of some sort of activity: growing wheat or weed for personal consumption. The mandate, on the other hand, gives Congress the power to regulate in the absence of any activity at all: the test is whether an individual has not purchased insurance. Via The Washington Post, the activity/inactivity question came up again in yesterday's appeals court oral arguments: 

The judges also asked probing questions of Mathew D. Staver, a lawyer for Liberty University, challenging Staver's assertion that a citizen who goes without health insurance has chosen not to engage in economic activity.

Staver and other opponents of the law argue that it would be unprecedented for government to force individuals to buy a product — health insurance — when they have chosen to go without it. Congress' power to regulate commerce can't give it power to require a person to take part in commerce, they argue.

"These requirements that you think are so important, this activity, does that have a constitutional basis? What in the commerce clause would require activity?" asked Judge Motz.

This is what passes for probing questions? What indeed? How about, I don't know…the part where it gives Congress the power to regulate commerce? Engaging in commerce, which is what Congress is constitutionally allowed to regulate, would seem to require, well, activity. Failing to purchase health insurance is neither activity nor commerce. Of course, the obvious reading of the Commerce Clause would also suggest that the regulated commercial activity in question cross state lines, which inactivity clearly does not. But thanks to the substantial effects doctrine, the obvious reading is no longer preferred amongst judges. Staver's slightly more polite response: "I think it's inherent when you're talking about regulating commerce.?.?.commerce cannot be idleness."