Thomas’s Dissent

by Harry Graver

Leaving aside the issue of the federal government’s taxing power, Associate Justice Clarence Thomas penned a brief two-page dissent, writing “separately to say a word about the Commerce Clause.” Thomas applauded John Roberts’s rationale about the Commerce Clause but also expressed a larger apprehension at the mentality, exemplified by the Affordable Care Act, that previous precedents have created.

“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,” wrote Thomas.

However, Thomas then reiterated his concerns and objections relating to those earlier cases: “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,” Thomas concluded.