Perverted Liberty: How the Supreme Court's Limitation of the Commerce Power Undermines Our Civil-Rights Laws and Makes Us Less Free

Abstract

I argue that the Supreme Court’s limitation of Congress’s commerce power in National Federation of Independent Business v. Sebelius undermines the edifice of federal civil-rights laws. NFIB narrowly upheld the Affordable Care Act’s individual mandate as a valid exercise of Congress’s tax power. But the Chief Justice and four dissenting Justices concluded that the mandate exceeds Congress’s commerce power. In their view, the Commerce Clause empowers the regulation of "existing commercial activity," but does not permit Congress to "create commerce" by compelling one to engage in unwanted transactions. Because the individual mandate conscripts people to engage in involuntary transactions these Justices concluded that it exceeds the commerce power. They contend that "200 years of precedent" support this reading. This is not so. The Civil Rights Act of 1964 includes a public-accommodations mandate requiring hotels and restaurants to serve patrons regardless of race. This mandate, like the ACA’s, does not regulate existing transactions. It creates commerce by compelling unwilling parties to engage in transactions. The Supreme Court unanimously confirmed the Civil Rights Act’s constitutionality in Heart of Atlanta Motel, Inc. v. United States, holding that the mandate fell within the commerce power. Heart of Atlanta paved the way for laws prohibiting discrimination in housing and employment. NFIB’s apparent revision of the commerce power casts doubt on the validity of these statutes and in so doing has rattled the bedrock of American civil-rights law.