More Like Gibbons Than Marbury
posted by David Orentlicher
I usually don’t agree with John Yoo, but his op-ed in this weekend’s Wall Street Journal is much closer to the mark than the commentaries likening Roberts’ opinion on the Affordable Care Act to that of John Marshall in Marbury v. Madison. While on its face, it may seem that Roberts sacrificed in the short-term to achieve a more important long-term gain, there is nothing in his opinion that imposes any meaningful limits on the Commerce Clause power. It still is as sweeping as it was before Thursday. Roberts may not have enlarged the commerce power, but there was no need to do so.
Indeed, the success of the “inactivity” argument was the most hollow of victories. Not only did it not result in the Court overriding the individual mandate to purchase health care, but there is no other purchase mandate that it will prevent in the future. Congress does not try to regulate economic inactivity because, other than with health care insurance, it can impose its purchase mandates by regulating economic activity. Just as Congress can require us to buy seat belts with our cars or V-chips with our television sets, it can require us to buy other things when we enter the marketplace, from broccoli to cell phones to GM cars.
I’ve very much enjoyed my stint as a guest blogger. Much thanks to Gerard, et al., for giving me this opportunity and for all the readers who engaged with me on the issues.