In the context of health care reform, Ilya Somin puts on a brave face and makes the traditional textual case for reading the Commerce Clause as a relatively narrow grant of power to legislate about actual commercial activity occurring across state lines, rather than an infinitely flexible mandate to Do Good so long as some tenuous Rube Goldberg connection to something vaguely economic can be drawn. It strikes me that the argument can be made quite succinctly. The Commerce Clause gives Congress the power:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
So here’s the point-in-a-nutshell question. What practical difference would it make, in light of the last century of Commerce Clause jurisprudence, if the clause instead had said:
To regulate commerce.
To regulate economic affairs.
It’s hard to think of any. Even the odd outlier decision like Lopez, cast as some kind of reactionary rollback of congressional prerogatives, would likely come out the same under this broader wording. I realize this is a horse that long ago left the barn, but I figure it’s worth pointing out now and again anyway.