Additional Comments on the Virginia Case

After reading Judge Hudson’s opinion, I’ve come to the inescapable conclusion, in which the judge himself concurs, that this question will reach the United States Supreme Court before a dispositive ruling occurs. If the limits of the commerce clause are infinite, this means that we have no constitutional limitations at all, but only the self-restraint of those who govern. This was made abundantly clear through the means by which the Patient Protection and Affordable Care Act (aka Obamacare) became law. In the face of serious doubts by a demonstratively large portion of the population, and the unanimous opposition of the current minority party, a bill not understood, or even read, by most of our lawmakers was passed by a procedural maneuver that makes a mockery of careful and deliberate legislation. The challenges by the various states like Virginia and Missouri may not prevail before our highest court. For the past 70+ years the court has been generally deferential to the findings and will of Congress. The 1942 Wickard v. Filburn case stretched the commerce clause beyond any theoretical bounds. The current Supreme Court, or should I say the Supreme Court before the addition of the two most recent justices (who probably make no discernible ideological difference), had an opportunity to rein in the impact of Wickard in Gonzales v. Raich (the medical marijuana case) and declined to do it, led by, of all people, Justice Scalia. Admittedly, that was one of those cases in which bad facts made bad law – I’m sure the very prospect of legalizing the drug like marijuana shook Scalia’s sensibilities to their core. Nevertheless, if there is any limit to Congress’s power under the commerce clause, it certainly must include the proscription of forcing individuals to engage in commercial activity. If it does not we have no limited government; we have the modern day equivalent of the Divine Right of Kings.

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