Conservatives who favor judicial restraint should not criticize the recent decision of the U.S. Court of Appeals for the 6th Circuit upholding the Patient Protection and Affordable Care Act, commonly referred to as “Obamacare.” After all, the judges were just following U.S. Supreme Court precedent construing Congress’ power “to regulate commerce among the several states.”
Before 1937, the Court interpreted this so-called commerce clause as limiting Congress in two ways. First, Congress could regulate only “commerce,” defined as the sale of goods (but not their production) and paid transportation. Second, that commerce had to concern more than one state. Enforcing these restrictions, the Court routinely struck down federal legislation governing matters that were either noncommercial or local, or both (such as labor and manufacturing).
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