As I wrote in this Washington Times op-ed, the individual mandate would violate the Commerce Clause. My primary argument is Congress can’t regulate “inactivity.”
There’s also an article today in the Washington Times that highlights some points that liberal legal scholar Erwin Chemerinsky has repeated on a number of occasions, including his claim that inactivity has already been regulated under the Commerce Clause. From the article:
“The 1964 Civil Rights Act prohibits hotels and restaurants from
discriminating based on race and thus prohibits inactivity,” said Erwin
Chemerinsky, dean of the University of California Irvine School of Law,
noting that law relied upon the Commerce Clause.”
Dean Chemerinsky is correct in that the Court has said that the Commerce Clause gives Congress the power to prohibit discrimination. However, he is incorrect in framing this situation as Congress regulating inactivity.
Congress is regulating the specific economic activity of running a hotel or restaurant. In regulating that specific activity, it has decided that discrimination is prohibited.
There’s not one example of the Supreme Court allowing the regulation of inactivity. That is what makes this whole situation unique.
