Canary in the Coal Mine

DownloadedFileAs the health care debate drags on in the Senate, it occurs to me that the Supreme Court’s Commerce Clause for this term, United States v. Comstock, is becoming more and more important.  Why?  Because health care reform, if enacted in something like its present form, will almost certainly face a constitutional challenge claiming that the individual mandate exceeds Congress’ commerce power.  Since this issue is already being discussed in op-eds and on blogs, at least some Justices must be aware that the question could be before them in the next few years.

Comstock may provide clues about the Court’s thinking on this, both in oral argument and in the opinions that follow.  Many Justices try to anticipate future controversies and use relatively innocuous opinions to plant seeds that will support a future line or argument that they want to make.  Thus, we need to pay close attention to what gets said in Comstock, not just on the holding related to civil commitment.

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2 Responses

  1. No less an authority than Speaker Pelosi has already weighed in with her analysis of this very (what she obviously considers already settled) question:

    “Are you serious? Are you serious?”

    I’ll bet she could get that published as a law review article.

  2. Alan says:

    It certainly would be better than some of the arguments put forward in the literature.

    But with regard to the health-care bill, won’t there be issues of standing that aren’t present in Comstock?