The Ginsburg concurrence

As bad as Justice Roberts’s opinion upholding Obamacare was, it could have been worse. At least he held that there exists limits on the power of the federal government, as tenuous as such limits might be in the presence of an unlimited taxing power. Here’s Justice Ginsberg’s opinion (p. 25-26):

In several pre-New Deal cases, the Court attempted to cabin Congress’ Commerce Clause authority by distinguishing “commerce” from activity once conceived to be noncommercial, notably, “production,” “mining,” and “manufacturing.” . . . The Court also sought to distinguish activities having a “direct” effect on interstate commerce, and for that reason, subject to federal regulation, from those having only an “indirect” effect, and therefore not amenable to federal control. . .

These line-drawing exercises were untenable, and the Court long ago abandoned them. . . See also Morrison, 529 U. S., at 641–644 (Souter, J., dissenting) (recounting the Court’s “nearly disastrous experiment” with formalis­tic limits on Congress’ commerce power).

These are chilling words. If it were up to Ginsberg, there would be no more “line-drawing”. There would be no limit on the definition of commerce, and hence no limit on the federal government’s commerce power. She approvingly cites David Souter decrying efforts to limit Congress’ commerce power.

But it may be even worse than that. It seems that only “formalistic” limits on Congressional power that are bad. It’s hard to know exactly what that means, but it sounds as though she is leaving herself an out. Structural limits on Congressional power are bad (nay, “nearly disastrous”), but arbitrary limits — imposed by liberal justices on a future conservative Congress — might still be acceptable.

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