In the matter of Obamacare’s “individual mandate,” Orin Kerr and a three-judge panel of the Fourth Circuit cannot grasp the activity/inactivity distinction. There should be no mystery about it:
The Constitution’s Commerce Clause gives Congress the power to regulate interstate commerce — activities that actually involve the transmission of products and services across State lines. The Commerce Clause does not give Congress the power to force participation in interstate commerce.
Congress therefore lacks the power to regulate the absence of interstate commerce, including decisions by individuals and businesses not to involve themselves in certain aspects of interstate commmerce.
The Necessary and Proper Clause merely allows Congress to make laws that enable it to execute its enumerated powers. The clause is not a mandate for Congress to go beyond those powers. Therefore, the clause cannot properly be invoked as an authority for the individual mandate.
End of discussion. Next case.
Rationing and Health Care
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It
Toward a Risk-Free Economy
Undermining the Free Society
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?