The Action-Inaction Distinction Before NFIB v. Sebelius

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Sturm College of Law


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


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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