Reasons for Cheer

From James Stewart’s “Common Sense” NYT column:

Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on vacation.

“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence. It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.” . . .

The Yale constitutional law professor Akhil Reed Amar has long argued that the health care act could be upheld as a tax, whether or not the statute actually used the “T-word,” as he put it. Still, he told me that he was troubled by the court’s restriction of the commerce clause and the triumph of the broccoli argument.

“There were five votes upholding the commerce clause interpretation, which is unfortunate,” he said. “This is very significant.” Congress now can’t accomplish anything it might have enacted under the commerce clause by simply calling it a tax. “There are limits to the tax power. It has its own internal limits and logic,” he said. . . .

“This opinion reinvigorates a stricter understanding of all the powers of government,” Professor Amar said. “There’s a renewed interest in limits to federal power. The language about inactivity suggests that any laws that purport to order conduct, including existing laws, have the potential to be challenged. This could become a powerful tool to achieve a more limited federal government.”