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Fun With Commerce Clause Counterfactuals

September 21st, 2009 · 2 Comments

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.

…or even:

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.

Tags: Law · Libertarian Theory



2 responses so far ↓

  • 1 Doug // Sep 21, 2009 at 12:11 pm

    This is a really great point and one of the most interesting non-topics in our political discourse. Of course, if it weren’t for all the court-made law broadening that clause, an amendment giving congress the authority to get all up in everyone’s business might have been adopted by the several states and, certainly, the senate.

  • 2 southpaw // Sep 21, 2009 at 12:47 pm

    Other than saving law students a lot of brain cells and frustration, none. It’s worth noting that Gonzales v. Raich provided an opportunity to scale back the commerce clause’s reach somewhat, and it was the Scalia who tipped the balance toward greater federal power more or less because he hates hippies.