Sorry, Progs, But You Really, Really, Really Did Lose The Commerce Clause Argument

M2RB: 30 Seconds To Mars

I don't remember the moment I tried to forget
I lost myself, is it better not said
Now I'm closer to the edge

It was a thousand to one and a million to two
Time to go down in flames and I'm taking you
Closer to the edge

No I'm not saying I'm sorry

(I guess they didn’t get the memo about Roberts’ Commerce Clause limitations, eh?)

"Probably because no such memo exists."

- xblade on July 1, 2012 at 6:42 PM

From the Opinion Syllabus:

"Held: The judgment is affirmed in part and reversed in part. 648 F. 3d 1235, affirmed in part and reversed in part.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court ...


2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.

"THE INDIVIDUAL MANDATE THUS CANNOT BE SUSTAINED UNDER CONGRESS' POWER TO "REGULATE COMMERCE."

NOR CAN THE INDIVIDUAL MANDATE BE SUSTAINED UNDER THE NECESSARY AND PROPER CLAUSE as an integral part of the Affordable CareAct’s other reforms. Each of this Court’s prior cases up holding lawsunder that Clause involved exercises of authority derivative of, andin service to, a granted power.
www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

From Chief Justice Roberts' opinion for the majority:

"If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . .

"THE COURT TODAY HOLDS THAT OUR CONSTITUTION PROTECTS US FROM FEDERAL REGULATION UNDER THE COMMERCE CLAUSE SO LONG AS WE ABSTAIN FROM THE REGULATED ACTIVITY.  THE FEDERAL GOVERNMENT DOES NOT HAVE THE POWER TO ORDER PEOPLE TO BUY HEALTH INSURANCE. . . . The Federal Government does have the power to impose a tax on those without health insurance." (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44).

"Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), NOT CLASSES OF INDIVIDUALS, APART FROM ANY ACTIVITY IN WHICH THEY ARE ENGAGED, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in‘extortionate credit transactions’ . . .” (emphasis deleted)).  THE INDIVIDUAL MANDATE'S REGULATION OF THE UNINSURED AS A CLASS IS, IN FACT, PARTICULARLY DIVORCED FROM ANY LINK TO EXISTING COMMERCIAL ACTIVITY.

"THE PROPOSITION THAT CONGRESS MAY DICTATE THE CONDUCT OF AN INDIVIDUAL TODAY BECAUSE OF PROPHESIED FUTURE ACTIVITY FINDS NO SUPPORT IN OUR PRECEDENT.  We have said that Congress can anticipate the effects on commerce of an economic ACTIVITY (not INactivity - Sophie). See, e.g., Consolidated Edison Co. v. NLRB, 305 U. S. 197 (1938) (regulating the labor practices of utility companies); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (prohibiting discrimination by hotel operators); Katzenbach v. McClung, 379 U. S. 294 (1964) (prohibiting discrimination by restaurant owners). BUT WE HAVE NEVER PERMITTED CONGRESS TO ANTICIPATE THAT ACTIVITY ITSELF IN ORDER TO REGULATE INDIVIDUALS NOT CURRENTLY ENGAGED IN COMMERCE.  Each one of our cases, including those cited by JUSTICE GINSBURG, post, at 20–21, involved PREEXISTING ECONOMIC ACTIVITY. See, e.g., Wickard, 317 U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana).

“The Framers . . .  gave Congress the POWER TO REGULATE COMMERCE, NOT TO COMPEL IT... [Otherwise you] undermine the principle that THE FEDERAL GOVERNMENT IS A GOVERNMENT OF LIMITED AND ENUMERATED POWERS.”

“Under the Government’s theory, Congress could address [America’s] diet problem by ordering everyone to buy vegetables.”

"People, for good 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 ENVISION."

"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."

"[A]llowing 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."

Thanks for playing.

Closer To The Edge - 30 Seconds To Mars

I don't remember the moment I tried to forget
I lost myself, is it better not said
Now I'm closer to the edge

It was a thousand to one and a million to two
Time to go down in flames and I'm taking you
Closer to the edge

[Chorus:]
No I'm not saying I'm sorry
One day maybe we'll meet again
No I'm not saying I'm sorry
One day maybe we'll meet again
No no no no

(Can you, can you, can you)
Can you imagine a time when the truth ran free?
The birth of a song, the death of a dream
Closer to the edge

This never ending story
Paid for with pride and fate
We all fall short of glory
Lost in our fate

[Chorus]

[x2]
No no no no
I will never forget
No no
I will never regret
No no
I will live my life

[Chorus]

Closer to the edge
Closer to the edge
No no no no
Closer to the edge
Closer to the edge
No no no no
Closer to the edge