“Not Unlimited” Is Not the Same As “Significantly Limited”: A Reply To Ilya

Just a quick reply to Ilya’s response on the scope of the Commerce Clause. In my view, the basic problem with Ilya’s argument is that it mixes up two different claims:

(1) Congress does not have unlimited power, and
(2) Congress has significantly limited power.

The Supreme Court has said (1). But it has not said (2), and the Court’s precedents for the last 75 years or so seem pretty clearly inconsistent with (2). That’s the problem with Ilya’s position, I think. Ilya starts with proposition (2); he then adopts an interpretation of “activity” that then proves proposition (2); and then uses (2) to show that the mandate is unconstitutional. But we need to start with proposition (1), not proposition (2), and they are very different.

If you start at (1), it’s easy to square proposition (1) with the individual mandate. All you have to do is come up with a theory that allows the individual mandate but doesn’t allow everything. One candidate for this theory is that the mandate is an effort to regulate commerce, rather than something noncommercial. That theory permits the mandate but doesn’t allow Congress to regulate noncommercial activity with no interstate nexus such as the possession of guns in Lopez.

Now, I’m not saying that this candidate of a possible reading of (1) is necessarily correct. Maybe it’s right, maybe it’s wrong. There are versions of proposition (1) that permit the mandate and versions of (1) that do not. My point is only that starting with proposition (2) isn’t helpful. Starting with proposition (2) rules out a lot of versions of (1) as an assumption: If you’re not already inclined to interpret (1) as also implying (2), making that argument as an assumption is not going to be persuasive.