Justice Roberts’ America

6 Pages Posted: 31 Jul 2012

See all articles by Robin L. West

Robin L. West

Georgetown University Law Center

Date Written: July 25, 2012


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.

Keywords: Justice Roberts, Supreme Court, health insurance, Commerce Clause, congressional powers, Affordable Care Act

JEL Classification: K30, K32, K39

Suggested Citation

West, Robin L., Justice Roberts’ America (July 25, 2012). Jurist Forum, July 2012, Georgetown Public Law Research Paper No. 12-112, Available at SSRN: https://ssrn.com/abstract=2120523

Robin L. West (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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