Monday, December 13, 2010

Article I and the regulation of inactivity

Again, a critical step--perhaps the critical step--in Judge Hudson's decision today was to hold that Congress cannot use its commerce power to regulate inactivity. Even in the cases that have pushed the commerce power to its outermost edges, Judge Hudson reasoned, "the activity under review was the product of a self-directed affirmative move" that "voluntarily placed the subject within the stream of commerce." In other words, no court has ever blessed this sort of use of the commerce power, and thus it is unconstitutional.

This is a completely defensible, if controversial, reading of the Supreme Court's precedent. The biggest difficulty for this argument, however--and one with which Judge Hudson did not grapple--is why Congress can use other Article I powers to compel individuals to do something. For example, it has long been settled that Congress can use its powers under Article I, section 8, clauses 12 and 13 (to "raise and support Armies" and "provide and maintain a Navy") to force individuals to register for the military draft. It can use its Article I, section 8, clause 9 power (to "constitute Tribunals inferior to the supreme Court") to compel individuals to serve on juries. It can use a variety of its Article I powers to compel individuals to transfer their title to property pursuant to a condemnation (though, of course, the government must pay "just compensation").

In other words, there are a variety of contexts in which--uncontroversially, at least to most observers--Congress can use its Article I regulatory powers to subject individuals to regulation, even though there was no "self-initiated change in position [that] voluntarily placed the subject within" the government's regulatory ambit.

That is not to say that these circumstances cannot be distinguished. One might argue, for instance, that each of these other contexts involves an obligation that a citizen owes to her government, the sovereign, and that forcing a citizen to deal with the government is qualitatively different from forcing her into a commercial transaction with a private third party. Or it could be that these mandates are somehow more "fundamental" to the exercise of these Article I powers than 1501(b) is to Congress's power to regulate interstate commerce. Or it could be that, for whatever reason, the capacity to compel extends to some Article I powers but not the Commerce Clause (though I'm unclear as to why that might be).

In any event, this seems an important point in the doctrinal logic of Judge Hudson's opinion. And it is one that he made no effort to defend. (That is meant not as a criticism, for one cannot possibly defend everything in a judicial opinion. Just an observation.)