Liberals claim that to strike down Obamacare would run counter to decades of Supreme Court precedent about the scope of the congressional power to regulate commerce among the states. Conservatives, while unenthusiastic at best about the precedents, argue that to affirm Obamacare would go beyond them. So how should this case be distinguished from those precedents?
Michael Greve’s new book The Upside-Down Constitution, which I recently reviewed for NR, provides a compelling answer: Unlike the governmental actions at issue in those previous cases, this one involves a commandeering of individuals that cannot be considered “proper” under the Constitution. His argument is that most of the cases we file under the heading of the “commerce clause” would better be analyzed as “necessary and proper clause” cases. He begins with Gonzales v. Raich, a 2005 case affirming the power of Congress to prohibit the cultivation and possession of marijuana even for non-commercial distribution within a state.
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