Somin in National Law Journal: On Constitutionality of Commerce Clause Rulings

As the nation's scholars and politicians debate the constitutionality of an individual mandate for health insurance coverage, many of the arguments hinge on analysis of the Supreme Court's past commerce clause rulings, which Professor Ilya Somin believes were wrongly decided.

Commenting in The National Law Journal, Somin agrees that the mandate is constitutional based on the high court's past rulings; however, he believes the Supreme Court's jurisprudence is wrong.

"Over the last 60, 70 years, the Court and the political branches have strayed very far from the text and original meaning of the Constitution," Somin says.

Despite disagreements over the issue of constitutionality, it appears evident to many legal experts that the debate will move ultimately to the courts, and scholars are looking to U.S. v. Comstock, which challenges Congress' authority under the commerce clause, for clues on how the federal courts might handle the issue.

Health Care Reform Spurs Litigation Talk, The National Law Journal, October 19, 2009. By Marcia Coyle. 

"The Raich marijuana decision in 2005 was a victory for Congress' commerce clause powers after a string of high court rulings limiting that power and strengthening states' rights under the Constitution, Chemerinsky said.

"But he said he would not generalize that the federalism revolution, which began in the Rehnquist Court and waned in Rehnquist's last few years, was over.

"'I think there are five justices who very much believe in that revolution,' he said, naming Antonin Scalia, Anthony Kennedy, Clarence Thomas and, based on some opinions they wrote as circuit court judges, John Roberts Jr. and Samuel Alito Jr.

"'There haven't been the cases in the Roberts Court, but now there is Comstock ,' said Chemerinsky.

"In Comstock, the justices this term will decide whether Congress exceeded its commerce clause power when it enacted a law permitting indefinite civil commitment of 'sexually dangerous' persons after they have completed their federal sentences. The U.S. Court of Appeals for the 4th Circuit struck down the law on commerce clause grounds.

"While Comstock may provide some guidance, it is unlikely to stop constitutional challenges to the insurance mandate. 'It is an unprecedented thing for Congress to order individuals to get health insurance,' Turley said. 'If this issue goes to the Supreme Court, I believe Congress will have a clear advantage. But it is not true this is such an easy proposition.'"

Read the article  (Subscription required)