Supreme Court Majority Endorses Activity-Inactivity Distinction

Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power because it does not regulate “economic activity,” but instead targets inactivity. Chief Justice Roberts also noted that upholding the mandate on this basis would lead to unconstrained congressional authority to enact other mandates:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated….. If the power to “regulate” something included the power to create it, many of theprovisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to“coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and navalForces.” Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary…

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity….”

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. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

I couldn’t agree with all of the above more. The problem is that Roberts then proceeds to “empower Congress to make those decisions” for us under the guise of imposing taxes. More on that point soon.