What the Constitution Doesn't Say

I've been absent from the debate about the constitutionality of the Affordable Care Act for a few months now. As the question has gained traction in the courts, it's become increasingly clear that my initial commerce clause analysis is a useful lens through which to view the controversy.

With Virginia v. Sebelius pending before the Fourth Circuit Court of Appeals, it's a good time to reflect on the debate thus far. The anti-Affordable Care Act argument is either that it is not "necessary and proper" to regulate health insurance by levying a tax against those who do not carry health insurance or that Congress's power to regulate "interstate commerce" does not include the power to regulate health insurance.

Either way, the argument goes that regulation of an individual's inactivity of not buying health care is a bridge too far for Congressional power. I'm not sure what differentiates commerce power, under which inactivity is taxed, from military power, in which inactivity is criminalized. After all, where is the corollary argument that the draft is an unconsitutional usurpation of individual liberty?

The inactivity/activity distinction is a trivial semantic flip (i.e. opponents of the Affordable Care Act would be forced to say that Congress could raise taxes on everyone but provide credits negating the tax to people who purchase health care). It is pointless distinction, as the Constitution doesn't say anything nearly so silly.

Supreme Court opinions lay the basis for the silliness, with anti-ACA briefs citing paragraphs in which Congress's broad authority to regulate "activites" touching on interstate commerce is assured. The belief is that the Supreme Court has always silently held this distinction, but never bothered to articulate in dicta that Congress does not possess power over the dark matter universe of inactivity.

Of course, the argument from opinions should confuse originalists Scalia and Thomas, who will see no such text or original intent for the argument. After all, Article I § 8 doesn't say:

"Congres shall have power... To regulate commercial activities... among the several states."

It says "to regulate commerce... among the several states," not to mention "to make all laws which shall be necessary and proper [in executing] the [above] powers."

Of course, don't expect "textualists" to make this point; they're not exactly bound by methodological consistency that they would hope to enforce on others.