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“The Power To Regulate Commerce”: Constitution, Court’s Precedent On Affordable Care Act’s Side

In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the lawsuits challenging the Affordable Care Act have no basis “in either the text of the Constitution or Supreme Court precedent.” And Silberman is right. The Constitution gives the United States power to “regulate commerce … among the several states,” and there is simply no question that a law which regulates one sixth of the nation’s economy regulates the nation’s commerce.

This not a particularly new idea. As Chief Justice John Marshall put it nearly two centuries ago, there is “no sort of trade” that the words “regulate Commerce” do not apply to, and these words give the United States “full power over the thing to be regulated.” The Affordable Care Act regulates trade in healthcare services, and thus America has the full power to regulate this important market.

In challenging the Affordable Care Act, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has no basis in the Constitution itself, it eliminates any bounds on what judges can do to impose their will on the American people. If judges are free to ignore the Constitution just this once, they can do it whenever they want, and there will no longer be any limits whatsoever on judicial discretion.

In other words, if judges have the power to strike down the individual mandate, there is nothing preventing the Supreme Court from forcing you to eat broccoli.


By: Ian Millhiser, U. S. News and World Report, March 26, 2012

March 27, 2012 Posted by | Affordable Care Act, Constitution | , , , , , , , | Leave a comment


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