The impact of inaction.

To an economist, perhaps, there is no difference between activity and inactivity . . . . But the distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.

Justice Roberts, yesterday, ruling on Obamacare.


Critics had warned that the so-called individual mandate, if upheld, would grant limitless authority to the national government to regulate every aspect of American life. There was even talk of a dreaded broccoli mandate. Roberts answered that concern by declaring the Commerce Clause authorized the regulation of economic activities but did not reach inactivity – like the decision not to buy health insurance.

That the United States’ Supreme Court even temporarily contemplated the argument that if citizens are compelled to purchase health insurance, what’s to stop the government forcing people to buy broccoli, is a laughable reflection on the ability of these lawyers to think logically. Scalia was probably even convinced by it. To be so blind to the reasons why health care is so different; to not see immediately the negative externalities imposed upon others in one case, which are so evidently lacking in the other, is staggering. And it looks like Roberts, whilst finding some narrow legal alleys through which the Court could uphold the law, was nevertheless with the nuts in spirit. He thought “inaction” is not the proper subject of legal regulation, even when its commercial impact is greater than most ‘actions’. When those staying out of the market collectively push up costs and drag down standards so drastically for all other people, society cannot possibly judge inaction legitimately exempt from law.

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