The Old Inactivity Canard

The Republican legal attack on the Affordable Care Act rests on characterizing the Minimum Coverage Requirement as outside the authority of Congress. Congres can regulate activities related to commerce, and may even create any regulations or laws necessary and proper to regulate any commercial activity. The argument against the Commerce Clause power here is that the government, in requiring an action, is pursuing power that is neither necessary nor proper to regulate the insurance industry, which is clearly interstate commerce.

The same point came up in a debate with a good friend last night: could the state coerce citizens into vaccinating their children? The same characteristics of the health insurance debate are present. Private individuals have a personal belief that they do not need the vaccination/insurance. In the aggregate, the risk to society are unacceptably high if a substantial number of citizens do not receive vaccinations or purchase insurance. Health care costs for everybody skyrocket and more resources are squandered on reactive strategies instead of prevention.

For vaccinations, there appears to be the critically dangerous exercise in biopower. If the state can make health decisions for individuals, why could it not force sterilizations or outlaw abortions, not to mention conscripting citizens into unethical clinical studies?

While my friend's initial etaction was to rely on a distinction between positive and negative power (the government may prohibit the metabolization of certain chemicals, but could not force the same), I asked her what she thought about chlorinated drinking water. Many municipalities provide clean drinking water to their residents while in essence forcing them to metabolize chlorine and other chemicals that are detrimental to health. The use of chlorine is justified because it prevents water-borne disease. In essence, the only difference between chlorinated drinking water and a polio-free school system is the point of enforcement: at the tap or at the point of a needle.

The short version of the long argument is thus: the government already compels action on the part of private citizens from requiring vaccinations in exchange for schooling to large scale evacuations. At the point of a needle, even, drug courts order heroin addicts to undergo methadone treatment--the state compels the use of a drug. The distinction between 'activity' and 'inactivity' is purely semantic, and even if there were a substantive difference, governments of all stripes engage in prescribing actions to their citizens.

Americans live in a free society not because the Government doesn't do these things, but because there are liberal principles that place bounds on the types of actions and prohibitions that the government can require. An appeal to the method of implementing a reform displays the Right wing's lack of serious objection to the Affordable Care Act.