Scalia and the Commerce Clause

[Geee]

National Review:


As the challenge to Obamacare’s constitutionality approaches the Supreme Court, the question on everyone’s mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court’s most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law pause.

At the center of the Obamacare case are the Commerce Clause and the Necessary and Proper Clause. According to the Constitution, the federal government has the power to “regulate Commerce . . . among the several States,” and also to “make all Laws which shall be necessary and proper” to do so.

Over time, the Supreme Court has interpreted these clauses as giving the federal government broad regulatory powers — a trend that many conservatives have resisted. Today, the federal government can regulate not only “Commerce . . . among the several States,” but also any activity that “substantially affects” such commerce, even if that activity is non-commercial in nature.