The Corner

There’s a Limit on the Commerce Clause

Some liberal Supreme Court watchers are issuing cautionary notes about the decision upholding the individual mandate under Congress’s taxing power. Lyle Denniston of SCOTUSblog notes that Chief Justice John Roberts decision that Congress could not pass the individual mandate under the Constitution’s Commerce Clause has implications for the future: 

Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

In other words, Randy Barnett, David Rivkin, and the other lawyers who argued that the individual mandate was an unprecedented expansion of the Commerce Clause’s power were right. They may have lost the battle on Obamacare, but they now have some weaponry to win future battles on this issue. In a major case, the court has found the Commerce Clause indeed has some limits in a major case, and that really hasn’t happened since the New Deal court  basically abandoned the traditional Constitutional  reading of that clause in 1937.


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