June 29, 2012

DICTA IS FOR THE FANBOYS:

Did Roberts Gut the Commerce Clause? (Jonathan Cohn, June 28, 2012, New Republic)

Richard Primus, a professor of constitutional law at the University of Michigan, is skeptical that Roberts' opinion will seriously limit the reach of that clause:

"People will say the discussion of the Commerce Clause is important, but its importance is symbolic rather than practical. This decision gave the Court a free shot to say that the commerce power is limited without having to strike anything down. Judges will get to say that the commerce power is limited and cite this decision. But no statute is likely to get struck down on this ground anytime in the foreseeable future. There aren't any statutes that would fall to this analysis, and Congress is unlikely to pass any.

"The job of a Supreme Court justice is to say the commerce power is limited, just like it is the job of a Cardinal to say "I believe in one true Church, holy, Catholic, and apostolic." It's a statement of creed. The Chief Justice may well believe in that creed, and certainly lots of other people do. There is value in asserting that creed. But I don't think it will actually decide a foreseeable case, and it didn't today.

"The brilliance of the decision is that the Court affirmed the creed without doing damage."

Elections are the only constitutional limit on the Commerce Clause.

Posted by at June 29, 2012 10:08 AM
  
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