The Action-Inaction Distinction Before NFIB v. Sebelius

Authors

Govind C. Persad, University of DenverFollow

Publication Date

7-22-2012

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

NFIB, Sebelius, Scalia, Roberts, Commerce Clause, Supreme Court

Abstract

Justice Scalia’s dissenting opinion in NFIB v. Sebelius asserts that the view that “there is really no difference between action and inaction” is “a proposition that has never recommended itself, neither to the law nor to common sense.” Justice Roberts similarly states in his opinion for the Court that the Commerce Clause permits the regulation of individuals’ actions but not of their omissions.

NFIB’s recognition of an action-inaction distinction is not as uncontroversial as the Court might believe.

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Publication Title

Law & Biosciences Blog

Recommended Citation

Govind Persad, The Action-Inaction Distinction Before NFIB v. Sebelius, L. & Biosciences Blog (July 22, 2012), https://law.stanford.edu/2012/07/22/the-action-inaction-distinction-before-nfib-v-sebelius-2/.