Legal Commentary

Activity, Inactivity, and Strikes

By Ilya Somin

One of the key arguments in Obamacare individual mandate is that the federal government lacks the power to regulate inactivity, and therefore cannot force people to buy products they don?t want, including health insurance. At Prawfsblawg, law professor Carlton Larson argues that the federal government already regulates inactivity because, in some cases, it forbids strikes:

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.

I don?t think this argument works. Federal laws restricting strikes are regulating the commercial activity of employment relations. They only apply to people who have employment relationships with particular employers. Working for pay qualifies as ?economic activity? even under a restrictive definition of the concept, and certainly does under the Supreme Court?s extremely broad definition adopted in Gonzales v. Raich: any action that involves the production, consumption or distribution of commodities.

Moreover, a strike or a boycott is itself a form of economic activity. It is not just ?doing nothing.? A strike is an organized effort to put pressure on an employer to make concessions to the strikers. That?s what differentiates a strike from a simple decision to quit by an individual employee, which federal labor law does not restrict. Similarly, consumer boycotts also involve a concerted effort to pressure some firm or government into changing its policies. That differentiates them from an individual consumer?s decision not to purchase a particular product. Participating in a strike or a boycott surely counts as ?activity? in both ordinary language and legal terminology.

The individual mandate, by contrast, does not target any preexisting economic activity, such as an employment relationship. Nor does it restrict only concerted efforts to pressure insurance companies into changing their policies. Instead, it forces people to buy insurance irrespective of their other activities. The real employment analogue to the individual mandate would be a law forcing people to work for a particular employer even if they had never worked for it before or signed any contract with it. As with any other exercise in legal line-drawing, there are cases where the line between activity and inactivity is genuinely ambiguous. But strikes and boycotts don?t seem like an example of such a close case.

As a libertarian, I think that the federal government should not forbid either strikes or consumer boycotts, just as I also think that the employers should be free to fire strikers or to refuse to hire people unwilling to sign a contract with a no-strike clause. So I am no fan of the anti-strike laws cited by Larson. Be that as it may, those laws clearly regulate economic activity in ways that the individual mandate does not.

Full post as published by The Volokh Conspiracy on January 17, 2011 (boomark / email).