Commerce, Death Panels and Broccoli: Or Why the Activity/Inactivity Distinction in the Health Care Case Was Really about the Right to Bodily Integrity

Abstract

In National Federation of Independent Business v. Sibelius, five Justices of the United States Supreme Court opined that the Commerce Clause does not authorize Congress to regulate “inactivity.” In thus giving effect to the intuition that laws compelling activity impose a more serious burden on the individual than do laws forbidding activity, these Justices mistakenly imported a libertarian principle into the Court’s federalism jurisprudence. Indeed, the intuition is not even true in all individual rights cases. Nonetheless, in the aim of understanding the logic behind the ruling, this Lecture explains how affirmative mandates that infringe the substantive due process right to bodily integrity can be more intrusive than prohibitions. In so doing, it draws connections between the political charge that the health care law would establish “death panels” and the effective use of the hypothetical fear that upholding the law’s so-called individual mandate would permit the government to require people to eat broccoli.

Keywords: commerce clause, regulate inactivity, relation of the individual to the government, right to bodily integrity, abortion, constitution