Legal Commentary

Adding an ?Act? to Overcome the Proposed Act/Omission Limitation on Federal Power

By Orin Kerr

I very much appreciate Randy?s response to my latest post; It?s really terrific to have this discussion with him. While I have him on the line, I wanted to push Randy a bit on the act/omission distinction.

If the constitutional line is between acts and omissions, as Randy suggests, then I gather Randy would agree that Congress could circumvent this restriction by prohibiting an affirmative act together with failure to buy health insurance. That?s what Congress did when it wanted to require sex offenders to register, for example. Under that recent law, a person who is supposed to register as a sex offender is guilty of a federal crime if he crosses a state line and has failed to register. The ?act? is the crossing of state lines, even though the real goal is to require sex offenders to register. The circuit courts have so far unanimously upheld this prohibition as being within Congress?s power. 

Given that, I?d be interested in Randy?s view of what ?acts? Congress could legitimately use to overcome the proposed act/omission distinction in the case of the individual mandate. Here are four possibilities:

a) Congress prohibits the affirmative act of crossing state lines after having failed to purchase health insurance.
b) Congress prohibits the affirmative act of using a means of interstate commerce, such as the Internet or the telephone system, after having failed to purchase health insurance.
c) Congress prohibits the affirmative act of using the postal service after having failed to purchase health insurance.
d) Congress prohibits the affirmative act of purchasing of any item in interstate commerce after having failed to purchase health insurance.

If the Supreme Court were to adopt the proposed act/omission distinction, which ones of these law would be constitutional because they are punishing ?acts? rather than ?omissions?? All of them? None of them? 

Full post as published by The Volokh Conspiracy on October 18, 2010 (boomark / email).