Baffled by Inactivity: The Individual Mandate and the Commerce Power

Abstract

Is there a way to analyze and evaluate the unprecedented individual mandate, consistent with the text of the Constitution and (at least post-1937) relevant Supreme Court decisions, without relying on the novel activity/inactivity distinction advanced by its opponents (to the bafflement of many courts and commentators)? This article argues that there is. It presents a brief against the mandate based upon the original public meaning and doctrinal exposition of words and phrases such as “commerce,” “regulate,” “necessary and proper,” and even “among,” which are in the Constitution and the cases. In doing this, it resists expansive readings of these terms which would give Congress virtually unlimited power in favor of an understanding more consistent with the principles of limited government and enumerated powers.

Keywords: Constitution, commerce, necessary and proper, individual mandate, original public meaning

JEL Classification: K10, K19