The fact is that not since 1937 has the Court turned down the use of the Commerce Clause as a basis for Congressional intervention in a major national economic concern — which of course neither the Gun-Free School Zones Act nor the Violence Against Women Act were.  Activity/inactivity is a new basis for limitation and has no anchor in our jurisprudence.  That is why Roberts’s opinion was not conservative but radical.  I have my doubts about the political and economic virtues of the ACA, but am appalled at this radically reactionary new doctrine.

And as for the reversion to Butler and pre-1937 Spending Clause jurisprudence, the practical effects may be profound and all bad.  It is even bad contract law.

Posted in Post-decision Health Care Symposium

Recommended Citation: Charles Fried, Online symposium: Radical opinions, modest result, SCOTUSblog (Jul. 2, 2012, 12:41 PM), http://www.scotusblog.com/2012/07/online-symposium-radical-opinions-modest-result/