Justice Roberts’ America
Robin L. West
Georgetown University Law Center
July 25, 2012
Jurist Forum, July 2012
Georgetown Public Law Research Paper No. 12-112
Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be stating it too strongly) that the Commerce Clause does not authorize Congress to regulate the inactivity of individuals — the "act" of not buying health insurance — even if that inactivity impacts interstate commerce. Rather, the Clause only authorizes congressional regulation where there is some activity of a commercial nature there to be regulated. Injecting a dose of libertarian and individualist thinking more typically associated with the Lochner-era's substantive due process jurisprudence into Commerce Clause reasoning, Roberts argued that the inactivity of not buying insurance is tantamount to doing nothing, and doing nothing cannot be characterized as commercial activity even if it has a commercial impact.
Number of Pages in PDF File: 6
Keywords: Justice Roberts, Supreme Court, health insurance, Commerce Clause, congressional powers, Affordable Care Act
JEL Classification: K30, K32, K39Accepted Paper Series
Date posted: July 31, 2012
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