Together with challenges to the health care law mounted by at least 19 states, as well as differing judgments in other jurisdictions, the stage is now set for the Supreme Court to decide the issue. If the court decides, contra Hudson, that the Commerce Clause can indeed be stretched to cover anything, it won't be the first time.
In 1942, the court (just a few years after FDR's court packing plan) ruled that the Commerce Clause could justify the regulation even of intrastate commerce.
"The marketing of intrastate milk," wrote the court in the 1942 Wrightwood Dairy case, "which competes with that shipped interstate would tend seriously to break down price regulation of the latter."
An even more far-fetched bit of court reasoning followed in Wickard v. Filburn (1942), in which the federal government fined a farmer who raised wheat for his own consumption. The rationale: By eating his own wheat, the farmer did not buy wheat, and this non-participation in the market for wheat affected interstate commerce. Those who cannot imagine the court upholding a requirement that individuals buy a particular product (health insurance) should think again.
Since the New Deal, and particularly during the civil rights era, the Commerce Clause has been interpreted capaciously to permit the government to do good (actual good in the civil rights cases, perceived good in the New Deal cases). But no matter what the motive, the effect was to vitiate the Constitution's principle of enumerated powers. A more limited understanding of the Commerce Clause emerged in the 1990s when the Supreme Court struck down the Gun-Free School Zones Act. The court's composition has changed since then.
But the mood of the country is changing, too. Everywhere you look, assertions of power are being questioned. When the FCC announced plans to regulate the Internet in the name of so-called "net neutrality," dozens of congressmen protested that the agency was exceeding its authority. Dissenting commissioner Robert McDowell dubbed it "jaw-dropping interventionist chutzpah." But the comment that captured the new mood of respect for limited powers came from Sen. Mitch McConnell. "The Internet," he said, "should be left alone." Yes, for starters.
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