November 17, 2011

MICKEY KAUS: LET THE BROCCOLI ROT.

I’d just as soon get rid of the Commerce Clause and have a simple constitutional principle: “The Federal government can do anything a state government can do, and if there’s a conflict the Federal rule wins.” It would shorten legal textbooks considerably. Unfortunately, it’s not what the document at issue says.

Nevertheless, in the course of arguing for the constitutionality of Obamacare’s “individual mandate,” Einer Elhauge pretty much rules out the possibility that limiting the federal government to the regulation of “commerce … among the several states” inhibits the feds from doing anything. To counter the charge that then Washington could make you buy broccoli, Elhauge argues … um, Washington could make you buy broccoli! But don’t worry, there are other limitations . . . Well, OK then! As long as we can just leave it rotting in the fridge. … But it’s a little suspicious–-and surely not a selling point–-that under Elhauge’s argument the only limits on government would be the rights — like “bodily integrity” and privacy — that liberal lawyers have dreamed up but not the limit — i.e. whether or not something is “interstate commerce” – the Founders dreamed up.

Well, they were just dead white men.

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