Justice Kagan Refutes Paul Krugman's Fanciful Charge of Judicial Corruption

Knows What She Is Talking About

Not So Much

On March 4th, the Supreme Court will hear arguments in King v. Burwell, a recent decision by the U.S. Court of Appeals for the Fourth Circuit.  In King, a divided panel held that federal subsidies encouraging the purchase of health insurance pursuant to the so-called "Affordable Care Act," ("ACA") are available to individuals who purchase health insurance on exchanges established by the national government in those states that decline to create such exchanges.  The Fourth Circuit disagreed with a panel of U.S. Court of Appeals for the District of Columbia, which reached the opposite conclusion the same day.  In particular, and as Jonathan Adler has explained, the D.C. Circuit panel adhered the plain language of the statute. That language provides that subsidies are available to those individuals who purchase insurance on exchanges "established by the State under Section 1311" of the Act.  Thus, the D.C Circuit concluded: "the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges 'established by the State.'" 

In a characteristically scathing essay, economist Paul Krugman claims that jurists who disagree with the Fourth Circuit's King decision are "corrupt" and "willing to pervert the law to serve political masters."  The result in King, he says, will reveal "just how deep the corruption goes."

Krugman's piece is long on invective and very short on legal analysis. Instead of parsing (or even quoting) the statute, Krugman claims that failure to subsidize purchases on federal exchanges would contradict Congress's overriding purpose in passing the ACA and undermine the statute.  In particular, Krugman claims that, without a subsidy, healthy individuals will decline to purchase ACA-mandated insurance, presumably choosing to pay the resulting tax-penalty instead.  The result, he says, would be a "death spiral," as the exit of healthy individuals from the insurance pool raised the cost of insuring those who remained and thus raised health insurance premia. Such increases, in turn, would cause more individuals to decline to purchase insurance, raising premia even further, and so on.

Krugman is certainly correct that, without a subsidy, health individuals may decline to purchase insurance that complies with the ACA's intrusive requirements.  For, as previously explained on this blog, the ACA artificially inflates the price of health insurance for many individuals, particularly those who are young and healthy, well above the cost of providing such insurance, so as to subsidize the purchase of such insurance by others.  (See also here.)  Moreover, removal of such a subsidy could readily set off the sort of death spiral that Thom Lambert describes in this thoughtful essay.

Thus, Krugman has certainly identified a plausible policy rationale for extending subsidies to individuals who purchase insurance on federal exchanges.  There is, however, an equally plausible rationale for the D.C. Circuit's "plain language" result, a rationale articulated by Krugman's fellow economist Jonathan Gruber, who, unlike Krugman, is an expert on the economics of health care. Indeed, the Obama Administration repeatedly cited Gruber's views on the purposes of the ACA when defending the individual mandate against constitutional challenge.    As Michael Cannon explains, in 2012 Gruber argued that reserving subsidies to those who purchase insurance on exchanges created by states would encourage states to create such exchanges in the first place, by reducing the price of health insurance for citizens in those states. In other words, Gruber described an elegant solution to a constitutional dilemma.  After all, under the Supreme Court's anti-commandeering jurisprudence implementing the Tenth Amendment, Congress lacks the power to compel states to create such exchanges.  See Printz v. United States, 521 U.S. 897 (1997); New York v. United States, 505 U.S. 144 (1992). By conditioning the availability of subsidies upon the presence of a state-created exchange, then, the ACA's plain language encourages states to create such exchanges, without transgressing constitutional boundaries.  In short, the D.C. Circuit's straight-forward application of the ACA's plain language may well interfere with Congress's objective to induce healthy individuals to purchase health insurance at inflated prices, at least in the short run.  In the longer run, however, this result may encourage more states to create exchanges, another apparent objective of the statute, thereby reducing the number and overall size of markets subject to the sort of death spiral that Krugman describes.  Unfortunately, Krugman's essay does not mention this alternative policy consideration.

Given these competing policy considerations, the D.C. Circuit's determination reflects a straightforward application of ordinary principles of statutory interpretation, whereby courts give effect to a statute's plain and ordinary meaning.  As Jonathan Adler and Michael Cannon have explained, the application of such principles requires the conclusion that the statute unambiguously denies tax credits to individuals who purchase insurance on a federally-established exchange.

Justice Elena Kagan, pictured above, understands these principles of statutory interpretation. Recently, in Michigan v. Bay Mills Indian Community, No. 12-515, Justice Kagan properly rejected the view that jurists may ignore a statute's plain language because "anomalies" in a statute suggest that  Congress really meant something else.  As the Justice (and former Solicitor General) explained:

"This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that . . . Congress 'must have intended something' other than what the statute's text actually."

Indeed, one pundit has suggested that, given this approach to statutory interpretation, Justice Kagan may be a sixth vote, along with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito, to reverse the Fourth Circuit.  One wonders whether Krugman would ascribe such a vote to "corruption." If so, it seems unlikely that Justice Kagan would give such an incendiary allegation a second thought. After all, when asked what she thought of Krugman's claim of "corruption," Kagan gave a straight-forward reply, stating that Krugman's allegation "is just ridiculous language."  Well said, Justice Kagan. 

Justice Sotomayor's Protection of Religious Liberty

 Protecting Religious Liberty (Again)

Would Agree

 

In a recent order, Justice Sonia Sotomayor temporarily enjoined application of certain regulations issued by the Obama Administration to implement the so-called Affordable Care Act.  The regulations in question would require the Little Sisters of the Poor and similar organizations to pay massive fines or authorize their insurance carriers to provide free contraception to their female employees.  (There is apparently no similar requirement that employers provide contraception to male employees.)  In a brief filed with Justice Sotomayor, the Little Sisters explained that the organization's insurance carrier is itself a Catholic organization and that the regulations at issue would impose annual fines of $2.5 million on "an organization that cares for 69 elderly people and has an annual budget of $6 million."  (Lyle Dennison, of SCOTUSBLOG, has additional details about the case here.)    The Sisters argued that the requirement in question violates the Religious Freedom Restoration Act, which prohibits agencies of the U.S. Government from issuing regulations that place substantial burdens on the free exercise of  religious belief unless such burdens are narrowly tailored to serve a compelling state interest.

 

In a U.S. New and World Report blog post entitled "The Catholic Supreme Court's War on Women," one Jaimie Stiehm  claims that Justice Sotomayor's order imposed her Catholic beliefs on American women.  In particular, the post claims that  "Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence."  The post also opined that "Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions."  The post also suggests that Justice Sotomayor has allied herself with other Catholic Justices who, the post says, possess a "clear religious bias when it comes to women's rights and liberties," that the result reflects "Vatican Hegemony."  The post also claims, without offering any evidence, that "meddlesome American Roman Catholic Archbishops are bound to be involved."  Such Archbishops, the post says, have a "penchant for control" whose  "principal target for years on end has been squelching women and girls."   

 

Any claim that Justice Sotomayor, the Sisters or Archbishops who may agree with the Sisters' position have thereby imposed their religious beliefs on others does not withstand even cursory analysis.  As noted above, the regulations at issue would require one Catholic organization to violate its religious beliefs by authorizing another Catholic organization to subsidize practices that violate such beliefs.  Justice Sotomayor's order simply prevented the Obama Administration from compelling the Sisters to violate their religion, thereby protecting the principle of religious liberty, recognized by RFRA, from abridgment.  RFRA, in turn, simply implemented the ancient Madisonian principle that each individual is free to determine the duty he or she owes to the Creator and that the discharge of this duty "is precedent, both in order of time and in degree of obligation, to the claims of Civil Society."  (See James Madison, Memorial and Remonstrance Against Religious Assessments)
 

Some employees of the Sisters may well wish to employ contraception.  However, neither RFRA, Justice Sotomayor's order or the Sisters have sought to prevent a single person from exercising that choice.  To be sure, the Sisters have declined to subsidize this practice, in the same way that employers fail to subsidize any number of practices. (Consider, for instance, the employer that declines to subsidize her employee's consumption of food or purchase of clothing or shelter.)  Moreover, Justice Sotomayor, applying RFRA, has prevented the Obama Administration from coercing the Sisters and other Catholic organizations to provide such subsidies.  However, as previously explained on this blog, declining to subsidize another's medical care does not "impose" one's beliefs on others simply because the refusal reflects the employer's religious beliefs.  Instead, such a refusal leaves the Sisters' employees entirely to free to purchase as much medical care of whatever sort that they wish. 
 

It should be noted that this is not the first time that Justice Sotomayor has rejected the Obama Administration's efforts to restrict religious freedom.   In Hosana Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (2012), all nine Justices rejected the Obama Administration's claim that the Religion Clauses of the First Amendment do not prevent Congress from imposing ministers upon Churches against their will.  There Justice Sotomayor joined the majority opinion of Chief Justice Roberts which, among other things, criticized the Obama Administration's "remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers."   Any suggestion that Justice Sotomayor imposed her religious views in either case is equally remarkable --- and wrong.  

Update (January 28, 2014):  The Supreme Court, without recorded dissent, has itself issued an order enjoining enforcement of the statute's contraception mandate, pending resolution of the Sisters' challenge.  The order, which can be found here, provides that the Sisters and their religious insurance carrier need not comply with the new regulations, so long as they notify the Department of Health and Human services, in writing, that "they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."  The order expressly provides that the Sisters "need not use the form prescribed by the Government and need not send copies to third-party administrators."  As a result, the Sisters need not authorize their insurance carrier to provide coverage that violates the Sisters' religious belief.  Any supposed "War on Women," it seems, has become unanimous.

 

Obamacare Imploding Already?

Architect of Implosion?

A recent story on CNNMoney explains why various Americans are choosing to pay a penalty instead of purchasing the health insurance nominally required by the so-called "Affordable Care Act" ("ACA").  Basically the insurance mandated by the ACA is far too expensive for some compared to the actual benefits such individuals would expect to receive.  Most importantly, like the Massachusetts reform that inspired it, the statute requires health insurance companies to charge younger, healthy individuals premiums that far exceed their expected health expenses, thereby subsidizing coverage for other Americans with higher-than-average expenses.  (See this previous post for an explanation of the Massachusetts approach and its onerous impact on younger, healthier individuals.)   As a result, and as previously explained on this blog, many rational individuals will be better off if they decline to purchase the mandated insurance, pay the penalty, and thereby self-insure, that is, pay their health care expenses "out-of-pocket."

The story profiles one such individual, a 29 year old who works as a medical assistant while attending nursing school.  According to the story, the insurance mandated by the Act would cost this single individual between $2400 and $3600 per year, despite taxpayer subsidies provided by the ACA, while the penalty for failure to purchase such a plan is about $300 per year.  It is therefore no surprise that this individual has concluded that "it is more economical for me to pay $300 a year [in fines] than $200 to $300 a month for insurance I don't use."

These data are of course only anecdotal, although they are consistent with more systematic analyses of the law's impact.  (See e.g. here).   These data are not surprising in light of the economic incentives that the ACA's centrally-determined pricing structure creates.  Moreover, if these data are in fact representative, this would be both good news and bad news for proponents of the Affordable Care Act.  The "good news" is that such data would bolster the Supreme Court's July, 2012 determination that the so-called "individual mandate" is an exercise of Congress's taxing power and thus constitutional.  As many will recall, a majority of the Supreme Court (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito) properly held that Congress lacks the authority under the Commerce Clause of the Constitution to compel individuals to purchase health insurance, because coercing individuals to purchase a product against their will is not, under the standard announced by Chief Justice John Marshall in Gibbons v. Ogden, 22 U.S. 1 (1824),  a "regulation" of commerce.  (See here and here).  At the same time, a different majority of the Court, in an opinion by Chief Justice Roberts, sustained the law as an exercise of the taxing power, construing the Act's "penalty" for failure to comply with the mandate as a mere "tax" on such a failure to purchase.  As previously explained on this blog, the holding that the penalty was in fact a tax rested upon a determination that the tax is low enough that individuals have a "meaningful choice" between purchasing the "mandated" insurance, on the one hand, or paying the penalty and self-insuring, on the other.  Thus, evidence that individuals are in fact choosing the penalty/self-insurance route helps confirm that, at least under the majority's test, the individual mandate is no mandate at all, but instead an option, albeit one distorted by the requirement that individuals without health insurance pay a modest tax if they lack health insurance.

 

Now for the bad news.  As explained in a previous post, the ACA's financial model, like that of its Massachusetts predecessor, depends upon enrolling millions of young, healthy citizens and then charging such individuals premia that far exceed their expected cost of health care during the term of the policy.  However, as Thom Lambert has explained in a recent paper in Regulation, the prospect of paying these high premia will induce many individuals to forgo such insurance, thereby changing the characteristics of the risk pool and increasing the per capita expected health care expenses of those who remain in the pool.    (See also here).  The result, of course, will be even higher premia, thereby inducing additional individuals to forgo coverage, altering further the risk profile of those remaining in the pool and once again increasing the premium necessary to meet the expect health care costs of those who remain in the pool.  Such a vicious cycle will, Lambert explains, will cause the Affordable Care Act to "implode."

To be sure, Congress could arrest this spiral by raising the penalty that individuals who decline insurance must pay and/or threatening such individuals with jail time, thereby transforming an option into a mandate.  However, such legislation would contradict the Court's recent holding that such a mandate exceeds the scope of Congress's power, thereby placing any such fix in immedate legal jeopardy.  In short, a Congress serious about real health reform should begin to examine alternative means of achieving  the Affordable Care Act's objectives by, for instance, altering regulatory policies that increase the price of health care.   (See here, here, and here, for previous entries on this blog proposing such reforms). 

Liberty, Power and Hobby Lobby v. Sebelius

Imposers in Chief

 

 

Understood the Difference Between "Liberty" and "Power"

 

 

Ditto

 

A recent essay in Slate magazine by Dahlia Lithwick takes issues with the Tenth Circuit's decision in Hobby Lobby v. Sebelius, which invalidated, as applied to Hobby Lobby, Inc., regulations promulgated by Secretary of Health and Human Services (HHS) Kathleen Sebelius (pictured above with President Obama)  pursuant to the Affordable Care Act.  The regulations require corporations and other firms with fifty or more employees  to purchase various forms of contraception for their employees, even when purchasing such contraception violates the owners' unanimous and deeply held religious beliefs.  Like several other federal courts, the Tenth Circuit held that coercing the owners of Hobby Lobby, a closely-held corporation owned by five family members, to violate their religious beliefs in this manner contravened the Religious Freedom Restoration Act ("RFRA").   RFRA is a federal statute, the core of which prevents the Federal Government from  burdening religious liberty.    Passed after Employment Division v. Smith, 494 U.S. 872 (1990), which held that generally-applicable and neutral laws do not violate the Free Exercise Clause of the First Amendment, the statute prevents federal agencies from placing a substantial burden on the exercise of religion, even by means of a generally-applicable regulation, unless such a burden is the least restrictive means of accomplishing a compelling state interest.  In short, the statute reinstates, as against federal agencies, the standard articulated by Justices Brennan and Douglas, respectively, in opinions for the Court in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), both of which Smith overruled.    See also Smith, 494 U.S. at 893-900  (O'Connor, J. concurring in the judgment) (endorsing the Sherbert test).   

 

Lithwick's essay repeatedly asserts that firms such as Hobby Lobby are claiming the right to impose their owners' religious beliefs on others by somehow barring their employees from using contraception.  For instance, the subtitle of the essay predicts that: "[t]he Supreme Court will soon decide if CEOs can impose their religious convictions on the people who work for them."    The piece also contends that  "[e]mployees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses."  The piece also asserts that, under the Tenth Circuit's approach:  "Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he [or she] can dictate the most intimate health decisions of his [or her] workers, whose own religious rights and constitutional freedoms become immaterial." (emphasis supplied)  In other words, Lithwick claims that Hobby Lobby's exercise of religious liberty reduces the liberty of some of its employees, with the result that the HHS regulations invalidated in Hobby Lobby actually promote liberty.

If in fact employers were coercively dictating their employees' religious beliefs,  regulations necessary to forbid such coercion would satisfy RFRA's compelling state interest test.  However, Lithwick's colorful rhetoric fundamentally mischaracterizes the question that was before the Tenth Circuit in Hobby Lobby.   For one thing, the court expressly disclaimed any reliance upon the Constitution, choosing instead to ground its decision on RFRA.  (See page 9, n. 2)    More fundamentally, Hobby Lobby's  owners do not seek to impose their beliefs on anyone or otherwise prevent their employees from using contraception.  Nor does the rationale of the Tenth Circuit's decision even remotely threaten such a result.  After all, Hobby Lobby has no power to conscript employees to work for it; nor does it have the power unilaterally to impose particular terms of employment.  Instead, its employees are members of a free society who voluntarily consent to their place and conditions of employment. (Lithwick provides no evidence that Hobby Lobby or other religiously-motivated firms have used fraud, unfair bargaining tactics or coercion to induce employees to work for them.)  In these circumstances, an employer's failure to cover a particular medical service or procedure does not "impose" the employer's convictions (religious or otherwise) on the employee any more than the enforcement of a standard deductible or co-pay is such an imposition.  Invoking such reasoning, an employer could also claim that an employee who declines to work extra hours for no pay "imposes" its will on the employer.  

 

To be sure, some employment agreements may appear less than voluntary.  For instance, a particular firm might be the only employer in a small, remote town.  Or, an employee may have remained so long at a particular firm that his or her skills may be useless elsewhere, with the result that he or she has no meaningful choice but to remain at the same employer.  In such cases the employer in question could have market power in the labor market, power that it could use to pay unduly low wages or foist on employees terms of employment that would not survive in a more competitive environment.  Even in such circumstances, however, a failure to pay for contraception would not "impose" the firm's beliefs upon its employees.   After all, failure to pay for someone else's contraception is just that; a failure to pay.  Hobby Lobby has not sought to prevent employees from using their own incomes to purchase contraception, or anything else for that matter.  Indeed, firms that do not  provide such coverage will incur slightly lower costs, realize a slightly larger net marginal product from each employee and thus pay slightly higher wages, wages that employees can use to purchase whatever they wish, including contraception.  (This is true, it should be noted, even if a firm possesses market power.  Such firms cannot both use the same power to reduce wages and impose inferior benefits.  They must choose one or the other.)  Hobby Lobby's employees remain perfectly free to purchase their own contraception.  Treating such employees as victims of coercive interference with their own liberty, religious or otherwise, stretches such concepts well beyond any useful meaning.  One might just as well claim that a Progressive employer "dictates" employees' beliefs and reduces their liberty when he or she refuses to provide free parking because he or she has a religiously-grounded objection to global climate change and commuting by car. 

Indeed, Lithwick's claim of religious coercion proves far too much.  After all, if Hobby Lobby is dictating its employees' beliefs, then so too is every firm and individual that declines, because of religious beliefs, to purchase contraception (or anything else) for someone else.  Assume for a moment that some pharmacists provide free contraception to their customers, perhaps as a loss leader, to lure them away from competing pharmacists.  Assume further that other pharmacists decline to adopt such a strategy because of their religious beliefs.  Under Lithwick's reasoning, those pharmacists who decline to subsidize their customers' use of contraceptives are "dictating" these customers' beliefs and interfering with their liberty, even though the customers remain perfectly free (as do Hobby Lobby's employees) to purchase contraceptives at market prices.  Such a claim of coercion refutes itself and incorrectly equates individual liberty with a legal right to extract financial resources from others. 

Lithwick's argument exemplifies what F.A. Hayek once characterized as the unfortunate tendency to redefine liberty as an individual's "power to do certain things," or "the effective power to do what we want," without external constraint.  See  Friedrich H. Hayek, The Constitution of Liberty, 16-20 (1960). Redefined in this way, such "positive liberty" often consists of the power to coerce others to subsidize the individual's chosen activities, whether parking or contraception.  This redefinition deprives the term "liberty" of any useful meaning, transforming normative questions about the proper scope of liberty into a policy choice between the wants and desires of competing individuals, each of whom can claim that a choice in his or her favor enhances (his or her) "liberty."  Even slave owners could (and did) claim that slavery enhanced their liberty, by increasing the slave owner's material welfare at the tragic expense of those unjustly enslaved.  Lincoln, of course, properly rejected this definition of liberty and the concomitant equation of "liberty" with power over others, calling such "liberty" the alleged right of "some men to do what they please with other men, and the product of their labor."  (See Address At A Baltimore Sanitary Fair, April  1864).  He instead preferred the right "of each man to do as he pleases with himself, and the product of his labor."

No doubt Lithwick, too, would sincerely reject the slaveowners' claim, although without invoking Lincoln's straightforward distinction between negative and positive liberty.  Still, her argument diverts attention from the real source of coercion in this context.  After all, as the Tenth Circuit held, the regulationsc hallenged in Hobby Lobby coerce some employers to violate their own religious beliefs.  That is, it is the Obama Administration, and not Hobby Lobby, that seeks to impose its views on others.  Legislative imposition of views is not ipso facto inappropriate; by its nature, laws "impose" some view on others.  However, regulations that require individuals to violate their sincerely held religious beliefs are prima facie violations of RFRA.  As shown above, such regulations do not enhance anyone's liberty, but instead extinguish it.  Absent identification of some other compelling state interest, RFRA's protection for liberty must prevail.

On The (Conservative) Distinction Between Commerce and Non-Commerce

Several scholars who agree with the result in the Obamacare decision have nonetheless criticized the Court's holding that Congress lacks the authority to coerce individuals into purchasing health insurance against their will.  (See this excellent explanation by Thom Lambert at Truth on the Market of why the Commerce Clause ruling is a holding.)  In particular, scholars claim that five justices (Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas and Alito) erred when they held that the Commerce Clause does not empower Congress to coerce such purchases.

Two examples of this reasoning, from a debate on Scotusblog, will suffice.

According to Dean Erwin Chemerinsky:

"Chief Justice Roberts still expressed the view that it would not be permissible under the commerce power. "Five justices took the position that there is a distinction between Congress regulating activity as opposed to inactivity. It is unclear how often this will matter, but the flaw in the argument is that everyone is engaged in economic activity when it comes to health care. Individuals either are purchasing health insurance or they are self-insuring. Congress was regulating the latter to ensure that health care is more likely available for all."

According to Professor Charles Fried at Harvard Law School:

"The fact is that not since 1937 has the Court turned down the use of the Commerce Clause as a basis for Congressional intervention in a major national economic concern — which of course neither the Gun-Free School Zones Act nor the Violence Against Women Act were. Activity/inactivity is a new basis for limitation and has no anchor in our jurisprudence. That is why Roberts’s opinion was not conservative but radical. I have my doubts about the political and economic virtues of the ACA, but am appalled at this radically reactionary new doctrine."

Both of these scholars confuse the issue by asserting that the Court's opinion rests upon a distinction between "activity" and "inactivity."  This assertion is incorrect.  Instead, the Court's opinion rests upon a distinction between actual "commerce" and the absence of commerce, only the former of which Congress is empowered to regulate under the Commerce Clause.  This is a distinction that is, in fact, "firmly anchored in our jurisprudence" and, of course, the text of the Constitution.  In Gibbons v. Ogden, 22 U.S. 1 (1824) Chief Justice John Marshall explained that the Commerce power entails the power to "to prescribe the rule by which commerce is to be governed."   As Chief Justice Roberts explained, and as previously explained on this blog, this defintion presumes the existence of commerce to be regulated.  Absent such commerce, the Commerce Clause is no more a source of authority to compell commerce than it would be a source of power to regulate the rules of hopscotch.

It is thus no surprise that neither scholar cites a single example in which Congress has employed the Commerce Clause to require individuals to enter a commercial transaction.

It will not do, as Professor Chemerinsky claims, to recharacterize failing to purchase health insurance as "self-insurance."   Of course it is, as this blog has previously explained.  Still, an individual who self-insures may never engage the health care system at all.  Or, he or she may only engage the health care system sporadically, over the years.  The choice to purchase health care, if needed, out of one's own pocket is not "commerce."  If it were, then Congress could recharacterize an individual's decision to walk to work instead of purchasing a car as "self-transportation" and rely upon this characterization to compell individuals to purchase automobiles or other modes of transportation against their will.  (Presumably proponents of such "regulation" would point out that individuals without cars sometimes engage the transportation system by, saying, taking a taxi or a bus.)  But, as Chief Justice Roberts explained, embrace of this principle would grant Congress an unprecedented and vast power to direct individual behavior, thereby undermining the liberty-protecting virtues of the enumeration of Congressional powers.    Or, to paraphrase Professor Fried, Professor Chemerinsky is proposing a "radical[] reactionary new doctrine."


It is of course true that failure to engage in commerce is "inactivity."  But so is failure to engage in piracy, for instance.  Still, if Congress attempted to declare all individuals who declined to purchase health insurance guilty of piracy, the Court would, one hopes, unanimously invalidate such an enactment.  Such a decision would not rest upon a new or "radical" distinction between "inactivity" and "activity," even though failure to engage in piracy is a form of inactivity.  Instead, the decision would rest upon a tried and true distinction between "piracy" and "non-piracy," only the former of which is within Congress's power to punish as "piracy."  In the same way, the Court's invalidation of the Federal attempt to compell  the purchase of health insurance rests upon a tried and true distinction between "commerce" and "non-commerce."  

As a result, the Court's failure to validate the coercive individual mandate was in no way "radical" or "reactionary," but instead quite conservative, in that it conserved the allocation of authority between the nation and individuals.