Understanding the ACA Arguments

Wed Mar 28 15:26:54 PDT 2012

All of these laws are in fact premised on prior activity: committing a sex crime, receiving money (surely an economic activity even under  a narrow definition thereof), and so on. Even acquiring a house (a prerequisite to liability for the marijuana case, which is your best example) is activity. 

It's true that courts claim that the criminal penalty is only punishment for failure to report rather than for the earlier crime that triggered a reporting requirement (or in Comstock's case, the power of the government to keep him in civil confinement). But the earlier crime is clearly a legal prerequisite for the application of the reporting laws.

I don't deny that somewhere in the voluminous federal criminal code there might be a genuine law that punishes people merely for inaction not predicated on any prior economic activity and can't be justified under anything other than the Commerce Clause. If there is one, I'm surprised the DOJ hasn't found it yet, after two years of litigation.  But I certainly can't rule it out. 

But even if such a law exists in some obscure corner of the US Code, I don't think it matters much to the legal issues in this case. A little-noticed law whose constitutionality has never been upheld by a court, and which likely passed Congress with little or no serious consideration is hardly a powerful precedent.

I hasten to add that I think some of the laws listed by Corey are unconstitutional. But that's a separate issue.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8124
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

----- Original Message -----
From: "Yung, Corey" <7Yung at jmls.edu>
Date: Wednesday, March 28, 2012 5:17 pm
Subject: RE: Understanding the ACA Arguments

> There are far tougher examples of federal laws for those opposed to 
> the mandate to address. The federal criminal code is full of laws 
> that facially or in application punish persons for failing to act 
> with punishments far harsher than the yearly penalty associated 
> with the insurance mandate. If a person discovers marijuana growing 
> wild in their backyard, they have an affirmative obligation to 
> destroy it. If they chose to do nothing, they could face 
> substantial prison time (particularly if the quantity is large 
> enough to classify the possession as having the intent to 
> distribute). Similarly, some sex offenders under SORNA must 
> register several times a year in person for sex crimes committed 
> decades ago or face a sentence of up to ten years imprisonment. 
> Because of the Ex Post Facto Clause, the federal courts have been 
> in universal agreement that the crime of failing to register is not 
> based upon the conduct in the prior sex offense, but instead based 
> solely on an offender's failure to act after SORNA was enacted. 
> Many persons who receive illegal proceeds do so because they do not 
> take the affirmative step of reporting the ill-gotten gains. The 
> respondent in Comstock notably was being sent to a federal civil 
> commitment facility not based upon any actions he had taken, but 
> because of his future dangerousness. And yet, the Court did not see 
> any problem with the federal law committing Comstock and other 
> similarly situated persons to a potential life term in a federal 
> facility based on no affirmative acts.
> 
> 
> 
> *Shameless self-promotion* I have an essay on the subject that 
> outlines dozens more examples of laws that punish inactivity in 
> situations with far less connection to "commerce" than the 
> insurance mandate even though they have been justified under the 
> Commerce Clause: 
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1995586
> 
> 
> Best regards,
> 
> 
> Corey Rayburn Yung
> Associate Professor of Law, The John Marshall Law School
> Visiting Professor of Law, University of Kansas School of Law (Fall 
> 2011)Visiting Professor of Law, University of Iowa College of Law 
> (Spring 2012)
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=411609
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-
> bounces at lists.ucla.edu] on behalf of Scarberry, Mark 
> [Mark.Scarberry at pepperdine.edu]Sent: Wednesday, March 28, 2012 2:07 PM
> To: Conlawprof at lists.ucla.edu
> Subject: RE: Understanding the ACA Arguments
> 
> Quick response to Chip before I have to start furiously preparing 
> for a class. I may have misunderstood him but:
> 
> There is of course an explicit power of Congress “To raise … 
> Armies,” and the draft is a long-standing and very direct way of 
> doing so. Remember George Washington’s response to the Quakers (I 
> think it was the Quakers) to the effect that they were good 
> citizens in all respects other than their unwillingness to bear 
> their share of the burden of serving in the armed forces? If I’m 
> not mistaken, they were given a conscientious objection opt-out 
> from the draft, but I haven’t researched the history on that point. 
> In any event, the draft is not a recent innovation.
> 
> Mark S. Scarberry
> Pepperdine Univ. School of Law
> Malibu, CA 90263
> (310)506-4667
> 
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Wednesday, March 28, 2012 11:32 AM
> To: Sanford Levinson
> Cc: Conlawprof at lists.ucla.edu
> Subject: Re: Understanding the ACA Arguments
> 
> Following up on Sandy's comment -- I was very surprised that SG 
> Verrilli did not counter the Kennedy assertion re: ACA "changing 
> the relationship of the federal government to the individual in a 
> very fundamental way" with a reference to selective service 
> registration.  All 18 year old men in the U.S. are under such a 
> mandate to register (and can, if Congress so acts, be drafted and 
> have their bodies shipped overseas to defend all of us).  Of 
> course, that is at times necessary and proper to the raising of 
> armies, a different Art. I power, but what difference does that 
> make?  The Court does not demand of Congress some greater than 
> usual justification for draft registration or conscription, so why 
> should it do when the conscription is to participate in a market, 
> under circumstances in which the "conscripts" all present the 
> danger of negative externalities (they suddenly are ill or injured, 
> and demand medical care, subsidized by others)?
> On Wed, Mar 28, 2012 at 1:45 PM, Sanford Levinson 
> <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu>> wrote:
> Kennedy said:
> 
> 
> The reason this is concerning is because it requires the individual 
> to do an affirmative act. In the law of torts, our tradition, our 
> law, has been that you don’t have the duty to rescue someone if 
> that person is in danger. The blind man is walking in front of a 
> car and you do not have a duty to stop him absent some relation 
> between you. And there is some severe moral criticisms of that rule 
> but that’s generally the rule. And here, the government is saying 
> that the federal government has a duty to tell the individual 
> citizen that it must act, and that is different from what we have 
> in previous cases, and that changes the relationship of the federal 
> government to the individual in a very fundamental way.
> 
> 
> 
> Please explain to me the constitutional relevance of this.  Is 
> Kennedy suggesting, as in Lochner, that common law norms are in 
> fact constitutionalized and that legislatures are without power to 
> change them?  I know this is David Bernstein’s and Richard 
> Epstein’s view, but is Kennedy suggesting that they are in fact 
> correct?  Does Kennedy believe it is unconstitutional for any 
> government to pass a “good Samaritan law” or only for the national 
> government to do so?  Why would this be the case, since, by 
> definition, in that instance, one has conceded that such a law is a 
> legitimate exercise of the state police power (and not, for 
> example, invalidated because the Constitution, correctly 
> understood, compels states to be radically libertarian)?  Also, 
> where in the world does he get the notion that anyone is arguing 
> that “the federal government has a duty to tell the individual 
> citizen that it [sic] must act,” as against a power to do so when 
> Congress believes it is necessary and proper to do so in order to 
> achieve an end that is licensed by the Constitution.  If this were 
> part of an answer on a final exam, what comment would we write in 
> the margin and how would it affect the final grade.   Let me 
> suggest that this paragraph would not count in his favor, nor would 
> I offer to write the student a recommendation if the rest of the 
> exam is as dubiously argued as this paragraph.
> 
> sandy
> 
> 
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> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
> _______________________________________________
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