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The integrity of the Commerce Clause

The surprise this morning, aside from the fact that the Affordable Care Act survived, is how the court majority reached its conclusion, especially as it relates to the individual mandate.

The assumption had been that the issue would come down to the conservative justices' approach to the Commerce Clause. It didn't -- in fact, five justices found the mandate in conflict with the Commerce Clause. Rather, the decision focused on Congress' taxing authority.

As I've written many times, the conservative justices' interpretation still seems bizarre to me. The Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause. Q.E.D.

Five justices obviously disagree. But, many have wondered, doesn't this do at least superficial damage to lawmakers' ability to use the Commerce Clause in federal policymaking? Might this be a lasting downside to the Democratic victory? NYU law professor Barry Friedman told Greg Sargent it does not.

Friedman pointed to this segment of the decision: "The court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes."

Friedman suggests that this ratifies the power to tax to regulate inactivity. He acknowledged that the justices put a stop to the use of the commerce clause to do this but added: "I don't see them as withdrawing power. The chief justice validated taxing to do exactly the same thing."

Friedman added, "This is far more devastating to federalism and the balance of power between states and the national government. You can now tax pretty much anything."

Jonathan Cohn talked to Richard Primus, a professor of constitutional law at the University of Michigan, is thinking along similar lines: "People will say the discussion of the Commerce Clause is important, but its importance is symbolic rather than practical. This decision gave the Court a free shot to say that the commerce power is limited without having to strike anything down. Judges will get to say that the commerce power is limited and cite this decision. But no statute is likely to get struck down on this ground anytime in the foreseeable future."