Justice Clarence Thomas’ dissent from the Supreme Court’s just published ruling on the Patient Protection and Affordable Care Act, quoted below, is short, to the point, and worth studying. His dissent also can be found at the end of the full ruling (together with the four Justices’ joint dissent), which itself can be read here. Justice Thomas’ cites are omitted below.
JUSTICE THOMAS, dissenting.
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” I adhere to my view that “the very notion of a ’substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.
It was this “substantial effects” test that permitted the ruling in Jones & Laughlin and which was dramatically expanded in Wickard. Until these odious rulings are reversed, the dangerous lack of limits still extant in the Commerce Clause, the majority opinion in this case notwithstanding, remain a clear and present danger to our individual liberties.