Since the Supreme Court did rule that the Commerce Clause isn’t sufficient to justify the individual mandate, it’s reasonable to wonder just how big a restriction that places on Congress. This is a tentative judgment, but I agree with Tom at SCOTUSblog:
Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn’t matter because there were five votes under the Tax Power): “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” That will not affect a lot of statutes going forward.
The ruling didn’t set out any kind of concrete limiting principle, as I was hoping. It simply explained the activity/inactivity distinction. So to the extent that this sets any precedent, it’s only that Congress can’t force people to engage in commerce. That’s not something Congress has done before or is likely to need to do in the future. The taxing power is sufficient for most purposes, and existing precedent on the Commerce Clause, which allows Congress nearly unlimited power to regulate existing commerce, is sufficient for the rest. So I doubt this decision will have much real effect on future lawmaking. It will be pretty easy to write nearly any kind of legislation to stay inside the court’s new rules.
