Judge Henry E. Hudson has just said that the insurance mandate of the new health-care law is unconstitutional. The center of the opinion, as I understand it, is that the constitutional power to regulate interstate commerce extends to economic "activities" but not to omissions of economic actions, such as not purchasing health insurance. It seems that Hudson's reasoning on this is empirical, namely, that prior court decisions on the scope of the commerce power have all concerned actions. Because no case has concerned an omission, then it must be that the power does not extend to omissions. Apparently - and I stand to be corrected if wrong - no prior court decision has explicitly said that omissions don't count. (Apparently the most relevant part is around pp. 20-21 of the opinion, which is available in the NY Times web page.)
A simple alternative explanation of the empirical facts is that most economically significant activities are actions, so an omission has never come up before. The judge here seems to be making his own distinction out of what seems to me to be thin air. (Again, I stand to be corrected if wrong.)
The decision seems to attest to the psychological salience of the act/omission distinction. As the lawyer for the health-care bill pointed out, the application of that distinction is in any case unclear, especially in this case. (Jonathan Bennett, in "The act itself", might be seen as saying that is unclear more generally.)
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I agree. Judge Hudson cites prior Supreme Court decisions that did not address whether there's an activity requirement but incidentally used the word "activity" in its opinion, and he fallaciously extrapolates from those cases an activity requirement.
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