The Action-Inaction Distinction Before NFIB v. Sebelius
Document Type
Article
Publication
Law & Biosciences Blog
Year
2012
Citation Information
Govind Persad, The Action-Inaction Distinction Before NFIB v. Sebelius, (2012), available at https://scholar.law.colorado.edu/faculty-articles/2007.
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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