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The Incredible Ordinariness of Federal Penalties for Inactivity

Corey Rayburn Yung

University of Kansas School of Law

January 30, 2012

2012 Wisconsin Law Review 841 (2012)

Those arguing that the insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission, where a common law duty is violated, but also offenses related to registration, record keeping, possession receipt, preventive measures, nondisclosure, organization, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws that would be in jeopardy if the mandate were held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended—it is about the shape and scope of federal criminal law that has been in place for over fifty years.

Number of Pages in PDF File: 30

Keywords: Commerce Clause, Necessary and Proper Clause, Health Care, Federal Jurisdiction, Omissions, Federal Criminal Law, Supreme Court

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Date posted: January 31, 2012 ; Last revised: September 5, 2012

Suggested Citation

Yung, Corey Rayburn, The Incredible Ordinariness of Federal Penalties for Inactivity (January 30, 2012). 2012 Wisconsin Law Review 841 (2012). Available at SSRN: https://ssrn.com/abstract=1995586 or http://dx.doi.org/10.2139/ssrn.1995586

Contact Information

Corey Rayburn Yung (Contact Author)
University of Kansas School of Law ( email )
Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
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