Passive resistance: excluding inactivity from the Commerce Clause still leaves Congress with far too much power.

• Author: Sullum, Jacob
• Position: Columns

RONALD REAGAN famously summarized the federal government's attitude toward the economy this way: "If it moves, tax it. If it keeps moving, regulate it. And flit stops moving, subsidize it" In January a federal judge added a coronary: If it doesn't move, don't regulate it.

In overturning the Patient Protection and Affordable Care Act, U.S. District Judge Roger Vinson said the law's requirement that every American obtain government-approved medical coverage exceeds Congress' power to "regulate commerce ... among the several states. "While all the other regulations that the Supreme Court has upheld under the Commerce Clause have targeted some sort of activity, Vinson noted, the health insurance mandate is aimed at the failure to buy something Congress thinks everyone should have.

For constitutionalists as well as ObamaCare partisans, this activity/ inactivity distinction, which was embraced by another federal judge in December, leaves much to be desired. But it is preferable to the one-prong test that the Supreme Court has implicitly applied in almost every Commerce Clause case since 1937: If Congress wants to do something, who are we to stand in its way?

The main advantage of drawing a line between activity and inactivity is that it does not require overturning any of the Supreme Court's Commerce Clause precedents. That is also its main disadvantage.

The Court has strayed far from the original understanding of the Commerce Clause, which was aimed at eliminating interstate trade barriers. At the time the clause was written and for many years afterward, "commerce" was understood to mean the exchange of goods (as opposed to manufacturing or agriculture), while "regulate" meant "make regular" by removing obstacles. And believe it or not, "among the several states" meant "among the several states," as opposed to the intrastate activities that Congress routinely regulates nowadays.

This narrow understanding of the Commerce Clause prevailed well into the 20th century. It explains why the Supreme Court in 1918 overturned a federal ban on the interstate transportation of goods whose production violated child labor laws, concluding that the power to regulate commerce "is...