No, Congress Has Not Regulated Inactivity Before

Has the Supreme Court previously ruled that Congress can regulate inactivity? Harvard Professor Mark Tushnet says it has: 

Opponents of the law insist that Congress has never ordered people to buy something — that is, to regulate inactivity as opposed to activity.

But Congress has successfully regulated inactivity, said Professor Tushnet of Harvard. In a famous 1942 case, Wickard v. Filburn, the Supreme Court ruled in favor of federal quotas, meant to support wheat prices, that restricted how much farmers could grow. In the case, Roscoe Filburn grew more wheat than permitted; he argued that the wheat was for his own use.

Professor Tushnet noted that Mr. Filburn's actions could be described as a failure to purchase wheat in the general market — a situation similar to that of people who do not buy health insurance.

"If the constitutional challenge has any legs, it is on the ground that it is unprecedented — Congress has never done it before," he said. "Well, it turns out that Congress has done it before."

Yeah…but no. This is a very creative reading of Wickard v. Filburn, but it does not fit the facts of the case.

Regardless of your opinion regarding the merits of the Court's decision, it was clearly about the regulation of an activity—specifically, growing wheat for personal use in excess of federally regulated quotas.

In 1941, Congress gave the Department of Agriculture the authority to set out capped quotas for farmers growing wheat. Roscoe Filburn was given an 11.1 acre allotment, but chose to grow just shy of 23 acres instead, using the "extra" wheat as feed on his farm. He was fined $117.11 for going over his allotted acreage. He took the government to court and lost, with the Court ruling that his activity, despite its local, non-commercial character, exerted "a substantial economic effect on interstate commerce." The logic behind this justification was that Filburn might buy less wheat on the market later as a result of growing excess wheat for personal use.

But he wasn't fined for not buying wheat. And the Court didn't approve regulation of a fine for a non-purchase. He was clearly fined for making the affirmative choice to grow more than his regulated quota. And it was that fine for engaging in a particular, self-directed activity—growing wheat beyond his allotted acreage—that the Court ruled acceptable.

So no, Congress hasn't regulated inactivity before. If anything, the justification for the mandate is the exact opposite of the justification for fining Filburn. In that case, the Court said it was permissible to fine someone for engaging in a particular local activity (growing more wheat than allowed by a federal quota) because it might later lead to inactivity (purchasing less wheat on the market).

With the mandate, the administration is arguing that it is justifiable for Congress to regulate inactivity (not purchasing health insurance) because it might later lead to activity (purchasing health care some other way, or perhaps relying on "free" care and shifting the cost to others).

Hanging over all of this, of course, is the crucial matter of individual choice. Filburn was fined for an activity in which he chose to participate—growing wheat beyond his quota. The mandate, on the other hand, is not a response to any comparable affirmative choice. It applies to nearly everyone simply because of the fact that they are alive.

Here's Reason.tv on wheat, weed, and ObamaCare:

Reason's Nick Gillespie interviewed Tushnet about the High Court in 2005.