Activity, Inactivity, Dawn, and Dusk
In today’s argument, Justice Kennedy seemed interested in the ACA challenger’s argument that the minimum coverage rule uniquely requires individuals to venture out into commerce, rather than pegging the law to some supposed pre-existing participation in commerce.
The activity/inactivity distinction is, of course, intellectually incoherent. Every first-year Torts students ought to learn to run circles around that sort of dichotomy. The reason they learn to do so, however, is that such distinctions and their incoherence make up the bread and butter of lawyering – all sorts of intellectually incoherent distinctions are nonetheless legally important. The existence of dawn and dusk does not negate the distinction between night and day.
The question, then, is how to figure out when such a distinction deserves to become a legal rule. The answer, I think, lies in the method of the common law. The reason that the activity/inactivity distinction doesn’t work is that it was invented to go after a particular law, rather than developing organically out of any underlying feature of commerce clause jurisprudence.