- The Opinion

The opinion is here. Chief's opinion is 59 pages, Justice Ginsburg's opinion is 61 pages, the four dissenters are 65 pages, followed by a short two-pager from Justice Thomas.  More later ...

 

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Roberts latched onto the state’s third backup argument. I apologize to the RFNJ readers that I was not more perceptive on this issue. 

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1:27 - I looked quickly at the commerce clause portion of majority opinion delivered by Justice Roberts. Of note, I have pulled the following quotes:

• But Congress has never attempted to rely on [commerce] power to compel individuals not engaged in commerce to purchase an unwanted product.  
• The power to regulate commerce presupposes the existence of com­mercial activity to be regulated.  
• The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
• People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.
• The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

The dissenting Justices joined in this portion of the Roberts opinion, making a pretty historic limitation on commerce power in a 5-4 decision. The dissent by Justice Kennedy vindicates federalism:

• But as the discussion above makes clear, the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress’ power to regulate. It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end. 
• All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.

Justice Thomas vindicates my view that that the use of legal test has let a federal power genie out of the bottle:

• I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” citations omitted. As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” citation omitted. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter­state commerce is a case in point.

At the very least, it appears this decision freezes the growth of commerce power at is present misshapen form.

 

I never really looked in my previous posts at the tax and spend powers the Constitution as providing the vampires in Congress a basis to support Obamacare, which was the point of my apology.  So I will pick up Honest Abe's tax cutting ax later.  Until then adieu.