The Chief Rejects Novelty

In upholding the individual mandate as an exercise of the taxing power, while rejecting the Commerce Clause basis, Chief Justice Roberts demonstrated a resistance to adopting novel principles. On the taxing power side, he rejected the novel argument that Congress may only rely on powers that it has expressly invoked even if there is another power that authorizes its action. On the commerce clause side, he rejected the novel argument that Congress may regulate economic inactivity. Foolish consistencies may be the hobgoblins of little minds, but we often see too little consistency by justices in their decision making.

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