ALSBTALK:

Busy delays posters as well as readers, hence this post is a bit slow in arrival.

Is there ever a context when a natural person is legally liable for not taking an action?  

I believe all would agree the USA Constitution lacks an express creation of an individual duty to purchase insurance for health care.  Having ruled out express, is there an implied source of duty?  That I doubt as well.  However, if there is no express individual duty imposed by the Constitution and there is no implied individual duty springing from the Constitution, does that then also mean that there is no expressly granted federal power that at its outermost emanations still can subjugate individual liberty, right, and/or privilege of inaction?  I believe all would agree that they personally could author an express grant of federal power or author an express grant whose implications clearly authorized the feds to command this particular individual mandate; and to so author in a fashion faithful and consistent with the tenor of the entire document.  

Accordingly, the question is:  "Is there any single existing express grant of federal power or array of existing express grants of federal power whose aggregated penumbras and emanations are of sufficient magnitude that the countervailing constitutional liberty, rights and/or privileges of individuals have not been surmounted by the procedural due process that was used?".  

In this post I will focus on the Commerce Clause.  Before turning there I will give but passing attention to one of multiple express grants of federal power that contribute implied penumbras and emanations via the express necessary and proper clause.  Bankruptcy is a specific power within the general power of Commerce.  Generically, the intensity of a specific power, within its scope of authority, is noticeably greater than the general power within that same scope of authority (i.e., specific controls the general).  Bankruptcy is noteworthy because it is both an express grant to the feds and has a companion express removal of State power (i.e., impair the obligations of contracts); thus, bankruptcy is a candidate for a federal power that is exclusive.  Is bankruptcy relevant to a discussion of health insurance?  Yes.  What causes bankruptcy?  No less that one-fourth of personal bankruptcies in the USA have as their immediate actual cause uninsured medical expenses.  Accordingly, I believe all would agree that any federal statute that rationally (not merely reasonably) would be expected to materially reduce that one-fourth would warrant classification as a penumbra bankruptcy power rather than as its weaker cousin emanation power.  In short, the Commerce Clause is critical to the debate of the constitutionality of the federally created individual mandate to purchase health insurance, but there are other expressly granted federal powers also contributing authority for that federal action.

As an aside, I'll also set aside the statutory interpretation rule that initial constitutionality analysis rests on the legislature's claimed basis of power, but that prior to completing statutory analysis with a conclusion of "unconstitutional" the judiciary searches for any constitutional basis, including those expressly rejected by the legislature (e.g., rejected for political reasons [e.g., "I never voted to raise taxes!"]).  Accordingly, I will focus my attention on "action" in the context of the Commerce Clause.

Let's go back to my lead off question.  Is there ever a context when a natural person is legally liable for not taking an action?  By what constitutional mechanism does Congress create in an issuer of securities an affirmative duty to speak without material omission as well as without material misrepresentation?  By what constitutional mechanism does Congress create in purveyors of tobacco products an affirmative duty to warn all retail buyers of (??today??) non-latent defects?  FDA black box?  How many more examples are needed before it is accepted as true that, IN  SOME  CONTEXTS, congressional power under the Commerce Clause includes the power both to compel action and to prohibit inaction?  Accordingly, the question is not whether Congress can mandate --an-- action, the question is whether Congress has the power to mandate --this-- action.

So, in what contexts does Congress have the authority to mandate an action?  

It is noteworthy that "to issue" and "to purvey" each is, itself, to act, and the prohibition on omissions is a prohibition of a companion inaction at the moment of an action.  Using the parlance of core, penumbra, and emanations, if Congress has power over the core of an action, the Congress has power over that action's penumbras.  Given the breadth of individual freedom, having a power to reach some penumbras does not mean Congress has the power to reach all penumbras of action nor the power to reach any emanations of individual action.  Proof of those powers would require additional evidence.  But, it is clear that Congress may regulate the penumbra of an action by compelling an action within that penumbra.

How active must an action be before an accompanying penumbra inaction may be prohibited (i.e., mandate)?  And, is a such a sufficiently active action present in the context of health care that the accompanying inaction of unfunded self insurance may be prohibited by a mandate to not self insure?  (Henry, give me moment, I'll get back to this point.)

Let's look at a tangentially similar insurance question:  State mandates to purchase automobile insurance.  That State mandate to buy automobile insurance is weakly similar to the federal mandate to purchase health insurance.  State auto insurance is weakly similar to federal health insurance because these two contexts have material differences, including but not limited to:  [i] State versus federal actor; [ii] far more powerful and general Police Power versus specific (relative to the Police Power) Commerce Clause; and [iii] implied general fundamental USA Constitution right to travel constraining State action in the specific context of State's broad power to manage a mere privilege to drive versus amorphous claim to liberty.  However, at their core each addresses the same problem (i.e., unfunded self insurance) and manage that problem in the same manner (i.e., mandate purchase of insurance from an insurer with regulated funding processes).  Critically, "to drive" is a far more intense and voluntary "act" than is "to live".  But, importantly, IN  SOME  CONTEXTS, government has and government exercises the power to mandate a purchase; and, that mandated purchase can be of funded insurance.

(Henry, I'm back) The core of the problem is unfunded self insurance.  The State address this core problem by mandating funded insurance:  either self funded (i.e., cash bond on deposit) or regulated insurance reserves (i.e., most frequently, but not necessarily, purchased from an insurance company in the market).  From the beginning of the Obamacare debate I have been on the lookout for a waiver provision and never have seen mention of it.  Henry, does Obamacare have an express waiver for self funded insurance similar to the State auto insurance waivers; or, is the waiver generic and discretionary (e.g., Secretary has power but not duty to waive if Secretary finds adequate alternative funded insurance)?  My guess is there is no express waiver for persons posting a cash bond.  My guess is there is no express waiver because of yet another material difference between auto insurance and health insurance.  My guess is that auto insurance permits cash bonds because the true claimant on the cash bond is a person other than the "insured"; and, that other person's reasonable claims are legislated as being capped (e.g., statutory minimum for policy limit [e.g., $50,000]).  In stark contrast, the claimant of health insurance is the individual.  That statutory cap --can-- be satisfied with a cash bond.  Without a statutory cap on the mandate one can not, with certainty, discharge the mandate with --any-- cash bond.  Legislating (in every sense of the word) such a statutory cap for auto insurance is far easier than for health insurance.  

Relatively few persons in the USA receiving health insurance from their "large" employer actually have "insurance".  Most health insurance plans of large employers are a combination of [a] paper pushing by an independent contractor all in the community recognize as an "insurer" (e.g., BCBS), and [b] self insurance by the employer.  Hence the feds adopted ERISA.  Moving into the realm of employer self funded health insurance plans opens many other cans of constitutional worms.  I'll note but one:  religion.  

To a non-trivial extent the claimed religious objection really is a pure financial objection:  morality costs more.  Not to pick on them, but to pick based upon their economic size, the various employer arms of the Roman Catholic church (e.g., universities) are of sufficient economic size to profitably engage in self insurance.  Morals and proximate cause tend to go hand-in-hand.  If X equals I pay you to do that which I view as evil; and if Y equals I pay you money and then you (??predictably??) freely choose to do with that money I gave you that which I view as evil, then I see both a difference in degree and in kind between X and Y.  I see a difference in kind between a religion's corporation directly paying for an abortion versus when a religion's corporation's employee takes compensation and uses that compensation to pay for an abortion.  Others might see only a difference in degree.  Note however, those that see only a difference in degree are not of one mind.  Of those that merely see a difference in degree some will see no governmental infringement of an individual's religious rights while others who only see a difference in degree will see governmental infringement of an individual's religious rights.  Let's set aside the question of whether a corporation can have --any-- religious rights and let's accept for the sake of argument that natural persons who do have religious rights might express those rights via collective action in corporate form, and accept that when those aggregated individual rights are in the corporate form, there is --some-- penumbra or emanation of those aggregated individual rights that is sufficient to preclude --some-- otherwise constitutional action by government.  That is, let's set aside the question of religion since it can not be answered until after the permissible contours of the Commerce Clause have been resolved.  The religious question is moot if Congress lacked the authority to civilly impose an individual mandate.  

Personally, I see a difference in degree that is a difference in kind; so, personally, I see no constitutional obstacle to applying Obamacare to employers of religious persuasion (assuming it is constitutional when applied civilly) since those religious employers can avoid imperiling their aggregated souls merely by purchasing insurance rather than self insuring.  That said, those raising religious objections have two problems.  First, the law did not compel the church to take the corporate form and thereby make self insurance profitable; and, if the legislation requires all corporations to act in a reasonable manner, then it is true the church is inconvenienced but it does not follow that facially neutral legislation is unconstitutional.  Second, given the difference in degree versus difference in kind discussed above, the religious employer can avoid its own religious transgressions merely by purchasing insurance from the open market rather than hiring a plan administrator and self insuring.  I seem to recall someone offering some advice on giving to government that which is government's.  

Two religion law items are noteworthy relative to our analysis of the Commerce Clause.  First, those religious self insuring employers almost never (??ever??) do their own plan administration; thus, religious employers that have hired a plan administrator already have chosen to enter part of the insurance market and made that choice solely on economic grounds since contract law permitted either purchase of religiously truncated health insurance or purchase of plan administration of a religiously truncated self insurance.  That is, such religious employers already have taken an "action".  Second, such religious employers are arguing that the penumbra of "action" includes inaction.  Accordingly, those seeking accommodation of their specific religion's viewpoints want to claim constitutionally sufficient causal connection between immediate actions and remote consequences, then I look forward to those very same religion's championing the constitutionality of Obamacare.  If remote counts, then remote counts.  Similarly, the champions of the constitutionality of Obamacare, because if remote counts, then remote counts, ought to champion careful constitutional analysis of religious objection claims.  And, I believe we all would agree that, generically, more constitutional deference is owed to religious rights than is owed to claims of governmental power.

Let's go swim in the deep end.

Below are two statements, [1] and [2].  I believe all would agree that both [1] and [2] are true.  Those two statements are as follows.
     [1]  No government may do indirectly that which it is prohibited from doing directly.
     [2]  A governmental action that is permitted may have indirect consequences that are not expressly prohibited.
To wrestle with either the dormant Commerce Clause or with the necessary and proper clause is to engage in a tag team wrestling match with [1] and [2].  

The Bounded Rationality of humans routinely generates subjectively good faith actions by individuals borne of a specific intent to generate consequence #A and devoid of specific intent and devoid of objective intent to generate other material consequence #B through #Z.  Alas, the best laid plans of mice and men generate unintended consequences.  Humans do #1 seeking #A and get (if they're lucky) #A and (and if they're real lucky, an innocuous) #B.  Such is life.  Law suffers under the burden of objectively detecting and calibrating both those subjective intents and those objective intents.  Necessarily law's infirmities increase the number of and the magnitude of the inventory of unintended consequences.

With respect to congressional targeting of accompanying inactions for prohibition or for compelled penumbra action, how frequent and of what magnitude of consequence must a stream of unintended consequences be before a stream of unintended consequences activates the necessary and proper clause?  (I'll set aside entirely the question of whether, in the necessary and proper clause, the word "and" means and; or; or, and/or.)  To begin to answer that question let's look at questions that feed it:  what, when, and where.

WHAT  IS  AN  "ACTION"?

Since we are searching for limiting principle(s) let's set aside the possibility that a raw and lonely "inaction" could provide sufficient constitutional basis for the exercise of congressional Commerce Clause authority.  In the context of a mandate to purchase health insurance to answer the question of a raw and lonely "inaction" would be but dicta.  Instead, let's focus on what all will agree, especially given our history of aversion from status offenses, is a sufficient basis:  an "action".  That is, our focus is on an "action" that either is or is not sufficient to support a constitutional exercise of congressional authority to mandate an action to replace what would otherwise be a companion penumbra inaction (i.e., not buy health insurance).

The analytic device of core, penumbra, and emanations is routinely applied in to Commerce Clause questions.  Scopes of power are said to have a core.  Often, a fibrous core ala the frequently used by the USA Roman fasci.
http://romanfasci.blogspot.com/
The Latin shadow cast by a fasci is both literal and figurative, the literal shadow being dynamic as the fasci is swung as a mace and the figurative expressing itself on the hearts of natural persons.  
http://dictionary.reference.com/browse/mace
Radiating out from that core are tendrils of physical, social, economic, and emotional connection with causation flowing both fro and to (a.k.a., emanations).

Power has a core.  Does "action" have a core, a penumbra, and emanations?  

Please stay with me here as leap over to physics for an analogy so as to understand law.  Is light a particle, or is light a wave, or is light both a particle and a wave?  Is light a discrete or is light probabilistic?

Clearly, all discrete events fit within the category "action".  But, is being a discrete event a prerequisite for being within the core, within the penumbra, --and/or-- within the emanations of an "action"?  

If fragments of the core, or of the penumbra, or of the emanations of an "action" are not discrete events but rather are probabilistic events, then how is the calibration of core, penumbra, and emanation altered for constitutional purposes?  

Generically, the law strongly tends towards discrete (e.g., facts; judgement for defendant), but the law's pathway to that discrete destination frequently reflects a probabilistic approach (e.g., more likely than not).  I believe fewer than all discrete events fit in the category "action" as well as believe fewer than all "actions" are discrete events.  For example, the consequence of gravity might be referenced as gravitational action, but the "action" of our interest is embedded in contexts and concepts of legal and of liability thus the successful candidates for "action" require an origination from a legal person as opposed to origination from the cosmos as well as require a legally recognized sufficiency in the realms of knowing and voluntary.  (That last word being the crux of the religion law question discussed above.)  In short, I believe, for the purposes of The Law an "action" can exist when its presence merely is probabilist rather than solely when firmly discrete.  I think you will agree that much of the law of strict liability reflects this.

WHEN  IS  AN  "ACTION"?

Actual causation is necessary for proximate causation.  Going forward in time the law embraces Bounded Rationality by truncating legal liability to those consequence of "action" that are reasonably foreseeable.  In law, may time flow backwards?  Ratification allows for legal time travel under the requirement of no material changes in position.  Does The Law allow anything other than forward flowing time in any other context?  In law, may future consequences of current conditions be sufficiently "reasonably foreseeable" that legal liability attaches for the current conditions?  May inaction today create sufficient future probabilities in the future that liability attaches today?  Can you say "injunction"?  Can you say "negligence"?  Surely, the answer to that is "yes" when a discrete event "action" is added to the current conditions.  Does the answer change when an "action" in the form of a probabilistic event inaction is added to the current event?  If that inaction is a breach of a duty to take "action", then surely inaction equates with "action".  But, as we noted, the Constitution does not, itself, create that duty.  May Congress create that duty as Congress regulates commerce?

The core of reasonably foreseeable is probabilistic "action"; and, the core of that is a discrete event today that has a probabilistic discrete event consequence tomorrow.  Is it constitutionally necessary the the event today be discrete and the event tomorrow to be discrete?  Is it constitutionally feasible for the Bounded Rationality of Congress to permit Congress to reasonably foresee consequences as sufficiently probable when those very same consequences are unquestionably beyond the ken of the vast majority of natural persons?  May the whole in legislative form have greater abilities to foresee than most of its individual parts?  May the whose in legislative form have greater abilities to foresee (read: a lesser Bounded Rationality) than the market aggregation of its constituent parts?  Or, must Congress, by constitutional mandate, be as blind as the populace and the market?  When Congress, in fact, both clearly can foresee and clearly does foresee a probabilistic discrete event consequence of current inaction by legal persons; when those very same legal persona either are blinded by market processes, or are otherwise ignorant of the consequence, or are preferring to ignore that congressionally foreseen consequence, does the full breadth of the Commerce Clause not include the congressional power to legislate creation of a duty to take "action" so as to avoid that clearly foreseen consequence?  In short, when is an "action"?  Must an "action" be now, or may the discrete event component of an "action" be in the future and the congressional regulation of that "action's" future residing discrete event be a regulation in the present when that "action" is but a current inaction?

Generically, I will ignore tax and spend powers.  But, the immediately above Commerce Clause questions are see by Congress with unusual acuity by way of Congress' exercise of its own spending powers.  Currently, Congress is directly funding hospitals that are under great financial pressure.  This allows Congress to perceive and understand market processes that otherwise would not be clearly seen by Congress.  For example, the e-room consequences of the inaction in question (i.e., not by health insurance).  Under the Commerce Clause, is Congress without power to do that which is financially necessary for an economically sustainable hospital?  Assume (as is known by all to be true) a clearly foreseen consequence, assume that consequence is a material contributor to public expenditures, assume some of those expenditures are constitutionally mandated companion expenditures for otherwise discretionary expenditures (e.g., government is not obligated to open a hospital, government is not obligated to include an emergency room in a hospital, but if government chooses to open a hospital with an emergency room, then government must provide emergency care to all natural persons in the quantity of emergency care necessary to extinguish the emergency), then is Congress without power to do that which is financially necessary for an economically sustainable hospital?  (Note, the answer to that last question also impinges on the answer to questions about school vouchers.)  

Can the constitutionally required "action" be in the future with the legislated duty be in the present?  At a minimum, the requisite magnitude of foreseeability for achieving reasonably foreseeable would need to increase proportionally with the reduction in objectively attributable to the substituting a probabilistic event for a discrete event.  But, as a matter of constitutional law (as starkly contrasted with good legislating) is regulation of a present inaction foreseen as germinating a future discrete event never an "action" within the purview of the Commerce Clause?

WHERE  IS  AN  "ACTION"?

Obviously, a prerequisite of federal Commerce Clause power is an "action" in Commerce.  The core is a direct effect, and the penumbra and emanations pick up close and substantial affects.  To my eyes, but perhaps not to yours, direct effect connotes discrete current event whereas close and substantial affect connotes reasonably foreseen consequence of current causes.

Surely, the limitation of constitutionally requiring an "action" in the format of a current discrete event has the salutary benefits of constricting congressional discretion; which, in turn, rather promptly translates in less liberty being regulated away.  But, due process of law is the metric of permissible governmental action.  As government seeks to reach farther, so to must the process that is due increase.  Is there no process of any kind that ever would allow the Congress to regulate an inaction with a foreseen consequence; when [i] avoidance of the foreseen consequence is necessary to achieve a significant governmental objective (i.e., public health), and when [ii] achievement of that significant governmental objective necessarily means many natural persons will simultaneously receive significant and substantial unquestionably desired benefits?  

An entirely separate due process question is whether legislative fact finding is a sufficient increase in procedural due process as well as whether that legislative fact finding is independent of judicial review finding of facts.  Also entirely separate is whether exercise of such authority is a good idea.  The constitutional question is far narrower:  "Does the power exist?".

An oft quoted description of the common law of torts is my rights end at the tip of your nose.  OK, where is the tip of your nose?  Am I to understand The Law as allowing the prohibition of hitting your nose but not allowing prohibition of swinging at your nose?  Would I have touched your nose if the shadow of my swinging fist touched your nose?

From the above I would hope you would agree that it is feasible to delineate limiting principle(s) for congressional regulation of inaction in Commerce.  And, that such principles would not do violence to existing rubrics of analysis.  In my experience as legislative staff I have found that it is wise to cleanly separate the question "Is this constitutional?" from the entirely different question "Is this good legislation?".  There is much in each one of those two categories that does not appear in the other category.

(Curious aside.  British English differs from American English at multiple points.  One is Americans "make" a decision and British "take" a decision.  That "make" vs. "take" distinction might or might not intentionally connote something about the current person engaged in deciding [e.g., connote a range of feasible decisions as well as connote a locus of control over which decisions are feasible].  And yet, when it comes to actions as contrasted with decisions both Americans and Brits "take" action.  Does that linguistic distinction inform this debate?)

Michael

Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department
College of Business Administration
Mammel Hall 228 
University of Nebraska at Omaha
6708 Pine Street 
Omaha  NE  68182-0048
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(402) 554 - 2823 voice  fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm