Roberts Bought the Commerce Clause Kool-Aid


This is from the syllabus of the Obamacare decision:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing.

That’s Chief Justice John Roberts. He bought the activity/inactivity Kool-Aid completely. What’s ironic, of course, is that whatever else you think of the law, the framers of the Constitution very decidedly didn’t know the difference between doing something and doing nothing. At least, they didn’t mention anything about this in the actual Constitution they wrote. That’s a distinction invented in the 21st century, not the 18th.

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