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.
Robin West, Justice Roberts’ America, Jurist Forum (July 25, 2012), http://jurist.org/forum/2012/07/robin-west-aca-roberts.php
Scholarly Commons Citation
West, Robin, "Justice Roberts’ America" (2012). Georgetown Law Faculty Publications and Other Works. 990.