Action, Inaction, and the Commerce Clause

Judge Henry E. Hudson ruled today that the individual mandate, Section 1501 of the new health care law, is unconstitutional. This is expected to be settled eventually by the Supreme Court. The Court noted:
While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate--and tax-- a citizen's decision not to participate in interstate commerce.
Ultimately, Judge Hudson found that regulating inaction is exceeds Congress' enumerated power under the Commerce Clause, and, to the consternation of some, that this finding also glibly settles the question as to whether power can be found under the Necessary and Proper Clause:
[T]he Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress board authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power.
Essentially, however, both the opinion and commentary seems to focus on whether a mandate to action is phenomenologically different from a prohibition on action. Tellingly, the language of the opinion itself-- "a citizen's decision not to participate" (emphasis added)-- identifies that the citizen indeed is acting here, at least to some degree.

It is interesting how modern libertarians can distinguish between action and inaction while, at the same time, the Austrian economics they so laud makes no such distinction. In von Mises, for example, "action" is a normative term referring to the impetus to change, and "doing" or "not doing" are both economic choices that comprise aspects of action.

The very foundations of classical liberal economics do not admit of the action / inaction distinction, but political liberalism rests squarely on this distinction, because it delimits the atomic individual, and the sphere of privacy.