Some who expected ObamaCare to be struck down are finding comfort in the Supreme Court’s rejection of the interstate commerce clause as a constitutional justification for ObamaCare. Virginia Attorney General Ken Cuccinelli and columnists Sean Trende and George Will all make the case that this decision, by continuing a string of decisions putting limits on the commerce clause power, will make things more difficult for liberals in the future. You can read their comments in the links below.

They are correct in being hopeful that this decision could bring long-term benefits, but several caveats are essential.

First, the four liberals on the court refused to give an inch on the commerce clause. They continue to believe that it grants Congress unlimited power over everything (except abortion). Adding just one more liberal justice to the Court would sweep away everything that may have been gained.

Second, as Justice Thomas pointed out in his individual dissent, even the majority ruling against the commerce clause still accepts precedents that grant enormous power to Congress. Only Thomas insists on a strict definition of commerce, while the other four continue to expand the commerce clause power beyond commerce itself to anything which “substantially affects” commerce. As usual, only Justice Thomas is willing to remain faithful to the Constitution.

Charles Orndorff


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