Legal Commentary

One Perspective on the Scope of Federal Power ?In the Commercial Sphere?

By Orin Kerr

I recently was reminded of this quote about Commerce Clause doctrine and I thought I would put it out there for comment in light of the recent debates on the constitutionality of the individual mandate:

[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.

Do you agree or disagree? The source of the quote, for those who are interested, is below the fold.

Source: Justice Kennedy, concurring in United States v. Lopez, 514 U.S. 549 (1995).

Full post as published by The Volokh Conspiracy on October 15, 2010 (boomark / email).