Govind Persad:

Justice Scalia’s dissenting opinion in NFIB v. Sebelius asserts that the view that “there is really no difference between action and inaction” is “a proposition that has never recommended itself, neither to the law nor to common sense.”^[1] Justice Roberts similarly states in his opinion for the Court that the Commerce Clause permits the regulation of individuals’ actions but not of their omissions.^[2]

NFIB’s recognition of an action-inaction distinction is not as uncontroversial as the Court might believe. Turn, first, to a previous health law opinion by Justice Scalia(!)—his concurrence in Cruzan v. Director:

I readily acknowledge that the distinction between action and inaction has some bearing upon the legislative judgment of what ought to be prevented as suicide-though even there it would seem to me unreasonable to draw the line precisely between action and inaction, rather than between various forms of inaction. It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction but between those forms of inaction that consist of abstaining from “ordinary” care and those that consist of abstaining from “excessive” or “heroic” measures.^[3]

Justice Scalia challenges a similar distinction, that between harming and failing to benefit, in Lucas v. South Carolina Coastal Council:

[T]he distinction between “harm-preventing” and “benefit-conferring” regulation is often in the eye of the beholder. It is quite possible, for example, to describe in either fashion the ecological, economic, and esthetic concerns that inspired the South Carolina Legislature in the present case. One could say that imposing a servitude on Lucas’s land is necessary in order to prevent his use of it from “harming” South Carolina’s ecological resources; or, instead, in order to achieve the “benefits” of an ecological preserve.  Whether one or the other of the competing characterizations will come to one’s lips in a particular case depends primarily upon one’s evaluation of the worth of competing uses of real estate.^[4]

While Justice Scalia uses the terms “harm-preventing” and “benefit-conferring” in Lucas but uses “action” and “inaction” in NFIB and Cruzan, the two distinctions seem to stand and fall together. Prosser and Keaton’s treatise on Torts identifies their relatedness and mushiness:

Failure to blow a whistle or to shut off steam, although in itself inaction, is readily treated as negligent operation of a train, which is affirmative misconduct; an omission to repair a gas pipe is regarded as negligent distribution of gas; and failure to supply heat for a building can easily become mismanagement of a boiler.^[5]

That Justice Scalia rejects the relevance of an action/inaction distinction in Cruzan (instead arguing that we should be permitted to regulate some forms of inaction but not others) and recognizes the malleability of the harming/failing to benefit distinction in Lucas, while endorsing the relevance of a strict action/inaction distinction in NFIB, is striking.

The malleability of an action/inaction distinction is also discussed—and disputed!—in another past Supreme Court case squarely within health law. In his concurrence in Washington v. Glucksberg, Justice Stevens observes that

[A]lthough the differences the majority notes in causation and intent between terminating life support and assisting in suicide support the Court’s rejection of the respondents’ facial challenge, these distinctions may be inapplicable to particular terminally ill patients and their doctors.^[6]

Stevens’s point here is similar to Prosser and Keeton’s above. Even if there are some very clear cases of regulated actions and unregulated inactions, some inactions may have all the relevant features of actions that are currently regulated.^[7] (And, perhaps, some actions may have all the relevant features of currently unregulated inactions.) Stevens thinks that whether a regulation applies to an action or an inaction cannot determine on its own whether the regulation is acceptable: rather, we must examine the particulars of the action or inaction being regulated.^[8] Yet both Justices Roberts and Scalia refuse to focus on the particulars of the action or inaction—in NFIB, failing to purchase health insurance—under evaluation. Instead, they reject the regulation of failing to purchase health insurance on the basis that a general permission to regulate all inactions would be unacceptable.^[9]

Whether or not NFIB’s use of the distinction between action and inaction to limit the Commerce Clause is justified, Cruzan, Glucksberg, and Lucas indicate that NFIB’s embrace of a formalist action-inaction distinction does not restate a settled proposition. Rather, it announces an answer to what was an ongoing dispute—and one on which Justice Scalia seems to have switched sides.

Govind Persad is a 2011-12 CLB student fellow, pursuing both a JD and a Ph.D. in philosophy at Stanford.

^[1] NFIB, slip op. at 13 (Scalia, J., dissenting).

^[2] NFIB, slip op. at 24 (“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.”). Roberts cites the “practical statesmen” remark to a concurrence by Justice Rehnquist, but provides no historical or precedential support for the “distinction between doing nothing and doing something.”

^[3] Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 296 (1990) (Scalia, J., concurring).

^[4] Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1024-25 (1992).

^[5] Prosser & Keeton on Torts § 56, at 374 (5th ed. 1984).

^[6] Washington v. Glucksberg, 521 U.S. 702, 751 (1997) (Stevens, J., concurring in judgment).

^[7] Glucksberg, 521 U.S. at 750 (“There may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life; in both situations, the patient is seeking to hasten a certain, impending death.”).

^[8] Glucksberg, 521 U.S. at 752 (“There remains room for vigorous debate about the outcome of particular cases that are not necessarily resolved by the opinions announced today. How such cases may be decided will depend on their specific facts.”).

^[9] NFIB, slip op, at 26 (“Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.”); NFIB, slip op, at 13-14 (Scalia, J., dissenting)(“By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market.  Commerce becomes everything.”).