Legal Commentary

At the Volokh Conspiracy, Ilya Somin, a tenacious opponent of the individual mandate, contends that boycotts are distinguishable from the individual mandate because boycotts are a form of economic activity, and thus subject to regulation under the Commerce Clause: 

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.

Count me unpersuaded by this distinction.  Suppose someone forwards me an e-mail urging me not to buy the products of Widget Co. because the company engages in child labor overseas.  I then decide not to buy that company?s product.  Under Professor Somin?s view, both the e-mail and my decision not to buy the particular product are a form of economic activity.

If this is true, it is very hard to see why the individual mandate is any different.  Aren?t people who refuse to buy health care simply boycotting health insurance companies?  Why would it make any constitutional difference if they did so in concert with other people or what their particular reason is for doing so?  Indeed, one would think that a boycott of a company for political reasons, given the First Amendment, would receive more, not less, constitutional protection.  If Somin is correct that such boycotts can be prohibited (a surprising admission by a prominent libertarian constitutional theorist), then the individual mandate really is an easy case.