Wednesday, May 11, 2011
With the arguments in the Fourth Circuit dealing with the constitutionality of the PPACA now over, it appears that for the action/inaction argument to get off the ground (if it should get off the ground), some firm theoretical basis for making the distinction needs articulation. There are some nice posts over at Volokh discussing the basis for the distinction. In a previous post, I suggested that criminal law, like other fields, draws the distinction, and Jonathan Adler makes some arguments well worth considering about the classical liberal view of the importance of the distinction.
I want to offer a speculation here about the nature of the distinction, at least at criminal law, but possibly with applications to the Commerce Clause area, though I am not sure at all precisely how. The speculation is purely theoretical -- it's an attempt to begin to think about what the nature of the distinction between action and inaction might involve -- and so it does not depend on any specific limitations about what Congress can or can't do under Article I or any structural limitations that might apply in any given field.
My speculation is that at least one criterion through which the action/inaction distinction might be analyzed is control. Where a person is in a position to exercise a sufficient quantum of control over some external event, that person can be held (morally, legally) responsible. Generally speaking, it is appropriate to assign criminal liability, for example, when a person "acts" but largely, if not only, because a person is more likely to be in a position to control his actions than not. If a person is not able to control his actions, we do not assign criminal liability, oftentimes by excusing the person. That is, we regulate (through criminal law) many kinds of actions because people are generally -- in the main -- in control of their actions.
Conceptually, the very same thing might be true for omissions/inactions. In criminal law, one who is in a position of sufficient control over whether not to do something is often punish-worthy. Consider a statute criminalizing the failure to pay income taxes (referenced in one of the comment threads over at Volokh). The reason that inaction/omission is punishable in such circumstances is that individuals are in a position of consummate control over the decision whether to pay or not. No one objects to the lack of an act in such cases, and the reason is control. Or how about the failure to act when one has put another person in a position of danger. Again, the issue is that by taking charge of the situation by creating the danger to the victim, one has placed oneself in a position of greater control than would otherwise be the case.
If, for purposes of regulation (in the criminal sphere, or elsewhere), the question of control is key, that might indicate that there is no categorical divide between action and inaction. The critical issue, insofar as regulation is concerned, is the differential degree of control over what one chooses to do, and chooses not to do. While it will often be the case that one has greater control over one's actions than one's omissions, that certainly will not always be the case. Perhaps most importantly, the label of action or inaction will not itself be able to resolve the question of when control over an action/omission is sufficiently strong to warrant regulation.
UPDATE: In another interesting post, Orin Kerr explicitly raises the relationship between actus reus and omission liability in criminal law and the action/inaction distinction. Orin correctly notes that what makes it possible to punish for omissions is the existence of a duty to act, and he lists the traditional categories where such a duty exists. But for me, that only pushes back the inquiry a step. Yes, there is a duty in such cases. But the question is why we impose a duty. I think that the answer relates again to the issue of control. We have carved out certain categories of omission liability in criminal law because in those situations (e.g., parent-child relationships, entering into a contract, voluntary assumption to care for another person, creation of a danger to another -- see Orin's cruise control/pedestrian example), the person who omits to act has a substantially greater capacity to control the situation than do other people. Moreover, the advantage of my control explanation is that it can explain omission liability in those cases where there is not a traditional "duty" -- such as failure to pay your taxes.