Regarding the constitutionality of the individual mandate, Orin Kerr poses the following hypothetical:
If a person comes into innocent possession of child pornography — for example, if you receive an unsolicited book in the mail, or an e-mail with an attachment, that contains child pornography — the law requires you to act to avoid criminal liability. Specifically, the person must:
promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) [take] reasonable steps to destroy each such visual depiction; or
(B) report the matter to a law enforcement agency and afford that agency access to each such visual depiction.
18 U.S.C. 2252(c). If a person does not do this, then he or she is guilty of a federal felony crime that has quite severe sentences.
I have two questions for proponents of the activity/inactivity distinction. First, in your view, does this law extend beyond Congress’s power by regulating inactivity?
Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down? The quoted statute, 18 U.S.C. 2252(c), is a statutory exemption to liability in the child pornography law. It is a “mandate” in the sense that it gives people a way to avoid going to jail. If the child pornography laws are an unconstitutional mandate, must the child pornography laws be struck down at least as applied to innocent possession? In other words, is it beyond the reach of Congress to require those who come into innocent possession of child pornography to take reasonable steps to destroy it or report the matter to law enforcement?
First, in your view, does this law extend beyond Congress’s power by regulating inactivity?
The law exceeds Congress’s power by attempting to reach beyond interstate commerce. The transmission of pornography across state lines may be within Congress’s reach. What happens to pornography when it reaches a destination is not within Congress’s reach, unless that destination is merely a node in the chain of interstate commerce.
Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down?
The law that requires one to act to avoid criminal liability. The possession of pornography (where possession is not for the purpose of interstate transmission) should be covered (or not) by state law.
In sum, the hypothetical doesn’t really address the activity/inactivity issue. A relevant hypothetical: Congress passes a law that requires every household to buy a subscription to a news magazine (Time, Newsweek, etc.) because (a) such magazines are distributed across state lines, (b) there is a compelling interest in their survival, and (c) because of (a) and (b) Congress has the power to regulate inactivity in the market for news magazines by compelling every household to subscribe to at least one of them.
In other words, the purpose of the individual mandate is not to help Congress enforce a legitimate regulation of interstate commerce. The purpose of the individual mandate is to help Congress regulate an entire market, known broadly as “health care,” on the excuse that some of the things involved in that market happen to be transported across state lines. Moreover, the “high costs” that have been used as an excuse for (further) meddling in the market are largely the result of artificially high demand for medical services — encouraged by “free” and “cheap” access via Medicare and Medicaid — combined with the suppression of supply by arbitrarily low reimbursement rates and red tape.