NFIB Sebelius Dissent Thomas

10 Sep

THOMAS, J., dissenting   

SUPREME COURT OF THE UNITED STATES
_______________
Nos. 11-–393, 11–-398 and 11–-400  
____________________
NATIONAL FEDERATION OF INDEPENDENT  
BUSINESS, ET AL ., PETITIONERS
11-–393 v.  
KATHLEEN SEBELIUS, SECRETARY OF HEALTH  
AND HUMAN SERVICES, ET AL .
 
DEPARTMENT OF HEALTH AND HUMAN    
SERVICES, ET AL ., PETITIONERS  
11–-398 v.  
FLORIDA ET AL .
 
FLORIDA, ET AL ., PETITIONERS
11-–400 v.  
DEPARTMENT OF HEALTH AND  
HUMAN SERVICES ET AL .

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT  

[June 28, 2012]

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 cor-
rectly apply our precedents to conclude that the Individual
Mandate is beyond the power granted to Congress un-
der the Commerce Clause and the Necessary and Proper
Clause. Under those precedents, Congress may regulate
““economic activity [that] substantially affects interstate
commerce.” United States v. Lopez, 514 U. S. 549, 560  
(1995). I adhere to my view that ““the very notion of a 

2

‘‘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.”” United States  v. Morrison, 529 U. S. 598, 627
(2000) (THOMAS, J., concurring); see also   Lopez, supra, at
584-–602 (THOMAS, J., concurring);     Gonzales v. Raich, 545
U. S. 1, 67–-69 (2005) (THOMAS, J., dissenting).  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.””  Morri-
son, supra,  at 627. The Government’’s unprecedented
claim in this suit that it may regulate not only economic
activity but also inactivity that substantially affects inter-
state commerce is a case in point.

Leave a Reply