Can the feds regulate sleeping dogs? (Photo by Blake Rea.)

For more than a century, the “commerce clause” of the U.S. Constitution — the part that says the federal government has the power to regulate commerce “among the several States” — has stood at the center of a legal tug-of-war. Liberals have grabbed it to extend Washington’s laws and rules in many new directions; conservatives have pulled back in a struggle to limit its extent.

The commerce clause helped progressives at the turn of the 20th century begin to place limits on the predations of big business. It lay at the center of the debate over Roosevelt’s New Deal in the ’30s. In the ’60s and ’70s it got pulled into the fights over civil rights, environmental regulations, and more.

Here we are again. It’s looking more and more like the American political and legal system will spend the next several years arguing over just how far the Supreme Court’s healthcare decision went in curtailing the power of the national state to impose its will in virtually every area that matters, including energy, transportation, environmental protection, health care, education, and so on.

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For instance, David Driesen, a law professor at Syracuse, ponders how the ruling might affect clean-air regulations:

… consider the following question: Under the Clean Air Act, the government has the authority to order a company to install a pollution control device. Does use of this authority compel a firm inactive in the market to become a market participant against their will in violation of the Health Care ruling?

It might seem, at first blush, that the statute authorizing such an order would clearly exceed Congress’ newly circumscribed power to regulate interstate commerce. In order to install the device the owner would, after all, have to purchase it. The Court at one point articulated a principle that the federal government may not compel “citizens to act as the Government would have them act.” But that is exactly what a lot of regulation does, including regulations demanding private inspection of food, filing of reports, and disclosure of information about securities.

Yet, there are many signs that the ruling will not invalidate all of the many regulations that compel action. The opinion contains significant doctrinal limits. The Court said Congress may regulate what individuals do, not what they do not do. The pollution control requirement does regulate an ongoing activity, pollution producing production, not inactivity, even if it does so by ordering a product purchase.

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Why are we arguing — like 9-year-olds stuck in a “Did too!”/”Did not!” loop — about the difference between “activity” and “inactivity”? Because that fine point is the crowbar conservatives spent the last two years sharpening in hopes of prying Obama’s healthcare reforms loose. They failed to do so, but they succeeded in getting a Supreme Court majority to embrace the general principle, and thereby inserted this absurd controversy into our lives.

Is failure to get health coverage activity or inactivity? Is eating broccoli activity or inactivity? This could go anywhere! Think about it: As I sit here and type these words, am I inactive, because I’m sitting on my posterior, or active, because I’m thinking and typing?

That’s the thicket into which the legal right has marched us. Even though we all might rather be thinking about what we can do to make sure more people get better health care, or how we can efficiently pay for everyone in the U.S. to have solid health insurance, this is our fate.

Here’s more from Driesen:

On the whole, this decision will probably spur more litigation than direct results. It will create whole new classes of arguments that lawyers can invoke to try to get courts to transform their feelings about regulation’s impingement on individual liberty into constitutional rulings — again. Although I suspect that the victories from this new campaign against federal regulation will prove few in number and quite narrow, this new front on the regulatory battlefield will likely enrich a lot of lawyers.

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