While the entire thing is worth reading, I'd like to highlight this point:
Don't get me wrong: I agree that the action/inaction distinction makes plenty of sense as a theory of individual liberty. Forcing people to do stuff generally constrains their liberty more than barring them from doing stuff. But this distinction is completely unrelated to the question any doctrine of enumerated powers must answer, viz., "why should we trust the states more than the feds to impose the challenged regulation?"There are two main ways to challenge federal legislation: by arguing that it contradicts a specific prohibition in the Constitution (like the First Amendment's free speech guarantee), or by arguing that it exceeds the federal government's enumerated powers (and is thus reserved to the states under the Tenth Amendment). Opponents of the health insurance reform bill are trying to conflate the two: they're making personal liberty claims, and cramming them into an Article I enumerated powers framework. Professor Hills has the right question: if personal liberty is the issue, why would states be allowed to institute the exact same regime that it was wrong for the federal government to institute?
As an aside, the commenter on Professor Hills' post raises a good point about the ridiculousness of pretending that the action/inaction distinction is legitimate:
Mazzone states: "Criminal law punishes things people do, not things they do not do." Who recalls the grand finale to Seinfeld, where Jerry, Elaine, Kramer and George were found guilty under a fictitious MA community's "Good Samaritan Law"? Aren't there non-fictional criminal laws that make doing nothing criminal, e.g. not filing income tax returns?Indeed, the individual mandate is just another in a long line of affirmative duties placed on citizens, a line that stretches all the way back to the founding.