What should have been
Justice Antonin Scalia was joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito in filing a dissent, saying the court used activist reasoning to defend a constitutionally indefensible law.
“The Court today decides to save a statute Congress did not write,” Scalia said. “… The Court regards its strained statutory interpretation as judicial modesty, it is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.”
Thomas also wrote separately to voice disagreement with the court’s use at all of the Commerce Clause as a test in the case, saying the clause was overused to far expand the powers of Congress.
“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,” he wrote.