Carlton Larson opines:
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.
To which I responded:
On your theory, why can't the government order me to exercise more and eat less? After all, being overweight increases the likelihood that I'll need medical services, which implicates economic activity. If the Supreme Court upholds the individual mandate, the combination of that decision with the expansive definition of commerce in use since Wickard will mean that there are essentially no limits on the government's ability to regulate anything except abortion, sodomy, and guns.
After posting that, it occurred to me that a better question would be: On your theory, why couldn't the government order me to hire a personal trainer? After all, that's compelling me "to engage in economic activity with another private party," which I gather is fine by Carlton's theory.
It's not my field, so I'm genuinely curious. I don't see how any concept of limited government survives if Obamacare passes constitutional muster.