A Critique Of Chief Justice’s Commerce Clause Analysis

Law360, New York (August 10, 2012, 12:46 PM EDT) -- In the historic decision upholding, under U.S. Congress’s taxing power, the constitutionality of the Patient Protection and Affordable Care Act, Chief Justice John Roberts, writing for the majority, also concludes that the provision that has become known as the “individual mandate” to purchase health insurance falls outside of the power of Congress to regulate commerce.

His rationale is as follows: The Commerce Clause gives Congress the power to regulate “activity.” The individual mandate claims a right to regulate “inactivity.” Stated another way, he says that the...
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