Obamacare Ruling Doesn’t Limit Congress Much

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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.

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DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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