Somin in SCOTUSblog: Taxing, But Potentially Hopeful Decision

"The struggle over the constitutional limits on federal power is far from over," says Professor Ilya Somin in a SCOTUSblog article in which he discusses the Supreme Court's upholding of the individual health insurance mandate.

"The plaintiffs came about as close as one can to winning a major constitutional case without actually winning it," Somin comments. "Yet the Court also offers us a measure of hope and vindication. A majority of the justices rejected claims that the mandate is authorized by the Commerce Clause and Necessary and Proper Clause. That has little immediate impact, but bodes well for the future," he says.

"Today's decision is unlikely to be the last word on the constitutional limits of federal power," Somin predicts. "As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues. Both Chief Justice Roberts' opinion and the powerful four-justice dissent reaffirm the need to enforce limits on congressional authority."

A taxing, but potentially hopeful decision, SCOTUSblog, June 28, 2012. By Ilya Somin.

"Although he cast the deciding vote in favor of the mandate, Chief Justice John Roberts’ opinion for the Court actually rejected federal government’s main argument for the law: the assertion that the mandate is authorized by the Commerce Clause, which gives Congress the power to regulate 'Commerce…among the several states.' As Roberts puts it "the power to regulate commerce presupposes the existence of commercial activity to be regulated.' But, he continues, the mandate '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.' If Congress can 'regulate individuals precisely because they are doing nothing,' it could impose pretty much any mandate of any kind. It could force people to purchase broccoli, cars, movie tickets or any other product. By endorsing this distinction between regulation of activity and inactivity, Roberts validated the main argument advanced by the mandate’s opponents."