On page 42 of the opinion, Vinson took that argument apart, and in words we could all understand: “If it (Congress) has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce, it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”
He then went on to say this in the same paragraph: “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power, and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.”
But my favorite part of the ruling had to do with what legal scholars call the “parade of horribles.” Vinson wondered what Congress might have in store for us if this expanded view of the Commerce Clause became the Law of the Land. He argued, with his tongue firmly in cheek: “Because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.”
Yes, indeed, judges do matter. And what we need in this country are more Roger Vinsons. Keep that in mind when you rally friends to vote in 2012. Show them this opinion, and let them know that a few men in robes hold the economic life of our country in their hands. Judges matter. And the Presidents who appoint them.