Will The Eleventh Circuit Accept States’ Activity/Inactivity Distinction?

Brian Beutler catches this exchange from yesterday’s oral arguments over the constitutionality of the Affordable Care Act before Atlanta’s Eleventh Circuit Court of Appeals: Judge Hull, a Clinton appointee, suggests that the plaintiffs central contention that the Constitution’s commerce clause does not allow the federal government to regulate “inactivity” is just not very convincing:

Specifically, Hull cast aside the plaintiff’s claim that by compelling non-participants in the insurance industry to buy health insurance, it regulates “inactivity.”

“[T]his case comes down somewhat to whether or not the decision — because you are making a decision, and let me put aside activity and inactivity. Don’t call my economic decisions I’m making inactivity. I consider it inactivity. The activity/inactivity [distinction] doesn’t help me personally,” she said.

It’s worth pointing out that some legal scholars have long dismissed this distinction. Washington and Lee law professor Timothy Jost contends that “the commerce clause nowhere contains the word activity” but rather focuses on “economic decisions.” And those decisions — for healthy people to stay out of the insurance market — can be regulated by the government because they result in $43 billion in cost shift to taxpayers, employers, and the government who pick up the tab for uncompensated, uninsured care.