The Commerce Clause Confusion
There is a fair amount of hyperventilating going on about what the Court said on the action/inaction distinction in the Commerce Clause. I think, though, that this discussion is missing the boat.
The fact is that Chief Justice Roberts’ dicta about commerce will have little or no significance. First, it is unlikely that Congress will attempt to regulate commercial inaction again anytime soon. Second, if it does it can structure it as a tax in a manner identical to the individual mandate. Third, no other federal statute enacted pursuant to the Commerce Clause purports to regulate inaction.
It seems to me that the more important point is that Lopez and Morrison are now settled law. Justice Ginsburg, who dissented in both of those cases, cited them in her dissent to ward off the argument that the Commerce Clause lacks any internal limit. This move probably ends the thought, which was present in the Lopez and Morrison dissents, that those cases are vulnerable to being overruled.