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

27 Pages Posted: 27 Feb 2013 Last revised: 29 Mar 2013

Michael C. Dorf

Cornell Law School

Date Written: February 27, 2013

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

Suggested Citation

Dorf, Michael C., Commerce, Death Panels and Broccoli: Or Why the Activity/Inactivity Distinction in the Health Care Case Was Really about the Right to Bodily Integrity (February 27, 2013). Cornell Legal Studies Research Paper No. 13-70. Available at SSRN: https://ssrn.com/abstract=2225883 or http://dx.doi.org/10.2139/ssrn.2225883

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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