Further Thoughts on the Health Care Decision: Commerce Clause

As suggested by Michael’s earlier brief post, today’s Supreme Court decision may be construed as a blow to Congress’ authority under the Commerce Clause.   Justice Roberts’ opinion for the Court held that the individual mandate is not a valid exercise of Congress’ power under the Commerce Clause and Necessary and Proper Clause.  In his view, the power to regulate presupposes the existence of commercial activity to be regulated and to allow regulation in the absence of activity would grant too much power to Congress.  

Although I accept that reasonable people can differ on this, I find Roberts' analysis unpersuasive here, particularly his narrow view of the Necessary and Proper Clause.  (I always thought the individual mandate was a valid exercise of Congress’ power under the N&P clause - as an essential component of a comprehensive scheme Congress clearly has the authority to enact.)  I also agree with Justice Ginsburg’s view that there was no reason for Roberts to rule on the Commerce Clause issue given his conclusion that that Affordable Care Act was a valid exercise of Congress’ taxing authority.  He reason for doing so seems strained at best.

Nonetheless, the decision on the Commerce Clause is out there.  It remains to be seen how much of a limit that analysis will impose on Congress’ authority to enact social welfare laws, but it assuredly will have some.

One unrelated observation: The dissent in the case (Scalia, Kennedy, Thomas and Alito) reads very strangely in several respects: (1) Until the last two pages, it only refers to the opinion of the Court once (unless I missed anothter reference); most of the time it refers to the briefs and arguments of the Government.  (2) It numerous times refers to Justice Ginsburg's decision as the dissent. (3) It goes through an awfully extensive analysis of severability, which seems completely unncessary given the opinion of the Court.  In other words, the dissent reads to me like it expected that it would be the opinion of the Court.