John Roberts’ Opinion Was Disasterous for the Cause of Limited Government

by Eric T. Phillips

In his ruling, Roberts upheld two centuries worth of precedents that have been used to expand federal power to the extent it has reached today. Prof. Brion McClanahan explains:

Roberts did not limit the power of congress under the “commerce clause.”  His decision in essence upheld an expansive interpretation, and he used the infamous Court decisions of McCulloch v. Maryland, Gibbons v. Odgen, and Wickard v. Filburn to defend an already distorted view of congressional power over commerce.  By invalidating the “commerce clause” defense of the Affordable Care Act, Roberts did, in the short term, stop further unconstitutional expansion, but he did nothing to restrict congressional power over commerce.

Roberts revalidated it, going so far as to praise the decision in the Wickard case.  We still can’t grow our own wheat for our own consumption on our own land without congressional oversight.  Roberts makes that clear.  The congress can still, in his mind, regulate anything that might be considered commerce—interstate, international, and intrastate—so long as it does not compel a person to engage in commerce.  This is no victory for limited government.

His reading of the “necessary and proper clause” is also problematic.  Roberts essentially argues that previous Supreme Court decisions upholding an expansive view of the clause are correct, but because the Affordable Care Act would have to “create the necessary predicate to the exercise of an enumerated power,” the Act could not be upheld under said clause.

Again, Roberts did nothing to invalidate previous poor decisions and in his summary praised Joseph Story and Oliver Wendell Holmes, two of the more activist judges in American history.  Story was little more than John Marshall light.  Overall, Roberts confirmed almost two centuries of expansive federal power and obviously maintained that the Court is the only body capable of determining the constitutionality of federal law.  Don’t be fooled into thinking otherwise.

Read the rest.

The solution, McClanahan argues, is for the states to react to Roberts’ decision with “a boisterous ‘so what!”‘

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