Question 1: Discuss the origin of the common law system, specifically addressing how the English common law system was formed and how it inspired the US legal system. Afterwards, discuss the different powers that the federal government has under Article 1, Section 8 of the US Constitution, and how those powers were applied to the two cases: NFIB v. Sebelius and United States v. Lopez.

Reference:

United States v. Lopez (1995): https://scholar.google.com/scholar_case?case=18310045251039502778

NFIB v. Sebelius (2012):

National Federation of Independent Business v. Kathleen Sebelius 567 U. S. _ (2012) Supreme Court of the United States June 28, 2012 Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the Court with respect to Paris I, II, and Ill-C. an opinion with respect to Part N, in which Justice Breyer and Justice Kagan join, and an opinion with respect to Paris Ill-A, Ill-B, and Ill-D. iii A The Government's first argument is that the individual mandate is a vaiid exercise of Congress's power under the Commerce Clause and the Necessary and Proper Clause.... By requiring that individuals purchase health insurance, the mandate prevents costshifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premium on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept. The Government claims that Congress has power under the Commerce and Necessary and Proper Clauses to enact this solution. I The Government contends that the individual mandate is within Congress's power because the failure to pur chase insurance "has a substantial and deleterious effect on interstate commerce" by creating the cost- shifting problem... The path of our Commerce Clause decisions has not always run smooth but it is now well established that Congress has broad authority under the Clause. We have recognized, for example, that \"[t]he power of Congress over interstate commerce is not conned to the regulation of commerce among the states," but extends to activities that \"have a sub- stantial effect on interstate commerce.\" Congress's power, moreover, is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others... Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product... Legislative novelty is not necessariiy fatal; there is a first time for every- thing. But sometimes \"the most tell ing indication of [a] severe constitutional problem is the lack of historical precedent\" for Congress's action.... At the very least, we should \"pause to consider the implications of the Government's arguments\" when confronted with such new conceptions of federal power.... The Constitution grants Congress the power to "regulate Commerce.\" Art. I, 8, cl. 3 (emphasis added). The power to regulate commerce presupposes the exis- tence of commercial activity to be regulated. If the power to \"regulate" something included the power to create it, many of the provisions in the Constitution would be superuous. For example, the Constitution gives Congress the power to \"coin Money,' in addition to the power to "regulate the Value thereof." And it gives Congress the power to "raise and support Armies" and to \"provide and maintain a Navy," in addition to the power to \"make Rules for the Government and Regulation of the land and naval Forces." if the power to regulate the armed forces or the value of money inciuded the power to bring the subject of the regulation into existence the specific grant of such powers would have been unnecssary. The language of the Constitution reflecls the natural understanding that the power to regulate assumes there is already sorne thing to be regulated... Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been. they all have one thing in common: They uniformly describe the power as reach- ing "activity.\" The individual mandate. however, does not regtd ate existing commercial activity. It instead compels individuals to become active in corn- merce by purchasing a product. on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day incvi- duals do not do an infinite number of things In some cases they decide not to do something; in others they simply fail to do it Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individ- ual could potentially make within the scope of federal regulation. andunder the Government's theory empower Congress to make those decisions for him. Applying the Government's logic to the familiar case of Wickard v. Filburn shows how far that logic would carry us from the notion of a government of limited powers. In Wickard, the Court famously upheld a federal penalty imposed on a farmer for growing wheat for consumption on his own farm.... That amount of wheat caused the farmer to exceed his quota under a program designed to support the price of wheat by limiting supply. The Court rejected the farmer's argument that growing wheat for home con- sumption was beyond the reach of the commerce power. It did so on the ground that the farmer's deci- sion to grow wheat for his own use allowed him to avoid purchasing wheat in the market. That decision. when considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat... Wickard has long been regarded as \"perhaps the most far reaching example of Commerce Clause authority over intrastate activity." but the Govem- ment's theory in this case would go much further. Under Wickard it is within Congress's power to regu- late the market for wheat by supporting its price. But price can be supported by increasing demand as well as by decreasing supply. The aggregated decisions of some consumers not to purchase wheat have a sub- stantial effect on the price of wheat, just as decisions not to purchase health insurance have on the price of insua nce. Congress can therefore command that those not buying wheat do so, just as it argues here that it may command that those not buying health insurance do so. The farmer in Mckaro' was at least actively engaged in the production of wheat, and the Govern- ment could regulate that activity because of its effect on commerce. The Government's theory here would effectively override that limitation. by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do. Indeed. the Government's logic would justify a mandatory purchase to solve almost any problem... To consider a different example in the health care market. many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance... The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. See, e.g., Finkelstein, Trogdon. Cohen, a Dietz, Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates. (detailing the "undeni- able link between rising rates of obesity and rising medical spending" and estimating that "the annual medical burden of obesity has risen to almost 10 per- cent of all medical spending and could amount to $147 bitlion per year in 2008\"). Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the instead... Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government's theory, Congess could address the diet problem by ordering everyone to buy vegetables... People, for reasons of the'r own, often fail to do things that would be good for them or good for society. Those failuresjoined with the similar failues of othe Iscan readily have a substantial effect on interstate commerce. Under the Govemment's logic that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Consli+ tution envisioned. James Madison explained thatthe Commerce Clause was "an addition which few oppose and from which no apprehensions are entertained.\" While Congres's authority under the Commerce Clause has of course expanded with the growth of the The Government, however, claims that this does not national economy, our cases have "always recognized matter. The Government regards it as sufficient to trigger that the power to regulate commerce, though broad Congress's authority that almost all those who are unin- indeed, has limits." ... The Government's theory would sured will, at some unknown point in the future, engage erode those limits, permitting Congress to reach beyond in a health care transaction. Asserting that "[there is the natural extent of its authority, "everywhere extend- no temporal limitation in the Commerce Clause," the ing the sphere of its activity and drawing all power into Government argues that because "[elveryone subject to its impetuous vortex." ... Congress already enjoys vast this regulation is in or will be in the health care market," power to regulate much of what we do. Accepting the they can be "regulated in advance." ... Government's theory would give Congress the same The proposition that Congress may dictate the con- license to regulate what we do not do, fundamentally duct of an individual today because of prophesied future changing the relation between the citizen and the Fed- activity finds no support in our precedent. We have said eral Government.... that Congress can anticipate the effects on commerce of To an economist, perhaps, there is no difference an economic activity. See, e.g., ... Heart of Atlanta Motel, between activity and inactivity; both have measurable Inc. v. United States, ... (1964) (prohibiting discrimination economic effects on commerce. But the distinction by hotel operators); Katzenbach v. Mcclung, ... (1964) between doing something and doing nothing would not (prohibiting discrimination by restaurant owners). But have been lost on the Framers, who were "practical sta- we have never permitted Congress to anticipate that tesmen, " not metaphysical philosophers.... The Framers activity itself in order to regulate individuals not cur- gave Congress the power to regulate commerce, not to rently engaged in commerce.... compel it, and for over 200 years both our decisions and The Government argues that the individual man- Congress's actions have reflected this understanding. date can be sustained ... because health insurance is a There is no reason to depart from that understanding now. unique product. According to the Government, The Government sees things differently. It argues upholding the individual mandate would not justify that because sickness and injury are unpredictable but mandatory purchases of items such as cars or broccoli unavoidable, "the uninsured as a class are active in the because, as the Government puts it, "[health insur- market for health care, which they regularly seek and ance is not purchased for its own sake like a car or obtain." ... The individual mandate "merely regulates broccoli; it is a means of financing health-care con- how individuals finance and pay for that active partic- sumption and covering universal risks." ... But cars and ipation-requiring that they do so through insurance, broccoli are no more purchased for their "own sake" rather than through attempted self-insurance with the than health insurance. They are purchased to cover the back-stop of shifting costs to others."... need for transportation and food. The Government repeats the phrase "active in the ... The individual mandate forces individuals into market for health care" throughout its brief, ... but that commerce precisely because they elected to refrain concept has no constitutional significance.... The phrase from commercial activity. Such a law cannot be sus- "active in the market" cannot obscure the fact that most tained under a clause authorizing Congress to "regu- of those regulated by the individual mandate are not late Commerce." currently engaged in any commercial activity involving health care, and that fact is fatal to the Government's 2 effort to "regulate the uninsured as a class."... Our pre- The Government next contends that Congress has the cedents recognize Congress's power to regulate "class[es] power under the Necessary and Proper Clause to enact of activities, " ... not classes of individuals, apart from the individual mandate because the mandate is an any activity in which they are engaged.... "integral part of a comprehensive scheme of economic The individual mandate's regulation of the unin- regulation"- the guaranteed-issue and community- sured as a class is, in fact, particularly divorced from rating insurance reforms.... Under this argument, it is any link to existing commercial activity. The mandate not necessary to consider the effect that an individual's primarily affects healthy, often young adults who are inactivity may have on interstate commerce; it is enough less likely to need significant health care and have that Congress regulate commercial activity in a way that other priorities for spending their money. It is precisely requires regulation of inactivity to be effective. because these individuals, as an actuarial class, incur The power to "make all Laws which shall be neces- relatively low health care costs that the mandate helps sary and proper for carrying into Execution" the powers counter the effect of forcing insurance companies to enumerated in the Constitution, Art. I, $8, cl. 18, vests cover others who impose greater costs than their pre- Congress with authority to enact provisions "incidental miums are allowed to reflect.... to the [enumerated] power, and conducive to itsbeneficial exercise.".... Although the Clause gives Congress authority to " legislate on that vast mas of incidental powers whid'r must be involved in the consti- tution." it does not license the exercise of any \"great substantive and independent power[s]\" beyond those spedficallyenumerated.... lnstead,the Clause is " 'merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] othenrvise granted are included in the grant.' \"... Applying these principla. the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance re- forms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of. and in service to. a granted power.... The individual mandate. by contrast, vests Congress with the extraor~ dinary ability to create the necessary predicate to the exercise of an enumerated power. This is in no way an authority that is "narrow in scope.".... Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring them- selves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is \"necessary" to the Act's insur- ance reforms. such an expansion of federal power is not a \"proper" means for making those reforms effective. The Government relies primarily on our decision in Gonzales v. Reich. In Reich. we considered "compre- hensive legislation to regulate the interstate market\" in marijuana.... Certain individuals sought an exemp- tion from that regulation on the ground that they engaged in only intrastate possession and consump- tion. We denied any exemption. on the gound that marijuana is a fu'rgible commodty, so that any mari- juana could be readily diverted into the interstate market. Congress's attempt to regulate the interstate market for marijuana would therefore have been sub- stantially undercut if it could not also regw ate intra- state possession and consumption... Accordingly, we recognized that \"Congress was acting well within its authority" under the Necessary and Proper Clause even though its "regulation ensnare[d] some purely intra- state activity." Raich thus did not involve the exercise of any \"great sibstantive and independent power,\" of the sort at issue here. Instead. it con- cerned only the constitutionality of \"individual appli- cations of a concededly vaiid statutory scheme\"... Just as the individual mandate cannot be sustained as a law regrlating the substantial effects of the failure to puchase health insurance, neither can it be upheld as a \"necessary and proper" component of the insurance reforms. The commerce power thus does not authorize the mandate. Accord, (ioint opinion of SCALIA, KENNEDY, THOMAS. and AUTO, 1]., dissenting}