Colin received quite an honor today. After leaving a comment on a blog by Connor Friedersdorf's blog yesterday, Connor took an entire post to elevate and explain Colin's comment--even preemptively defending it in the face of "liberal commentators." In Colin's comment, he makes a point about the text of the Commerce Clause--the clause of the Constitution that vests Congress with the power to regulate commerce between the States. Colin rightly notes that
[t]he Commerce Clause does not say that Congress has the power to regulate trade with foreign countries, the Indian tribes, and -- oh by the way -- also do whatever it pleases so long as it even tangentially has anything to do with commerce.
Connor, for his part, then launches into a discussion of whether liberals are wrong to cast aspersions of partisanship on the conservative judges for striking down ACA. He rightly defends the intellectual honesty and consistency of Thomas's position but then says this about the other conservative justices:
The rest of the conservative justices face a more difficult decision. All are to varying degrees supporters of both stare decisis and the notion that a core function of the Constitution is to divide power among the federal government and the states, putting meaningful limits on Washington's power. Weighing in on the Affordable Care Act, they're inevitably going to undermine at least one value in which they earnestly believe.
But Connor's dilemma is false. The doctrine of stare decisis and the desire for "meaningful limits" on the Commerce Clause are not in conflict. In fact, the Court could--and should--uphold the ACA while observing both stare decisis and reinforcing meaningful limits on the Commerce Clause. As Professor Koppelman wrote in Salon last week:
But there already is a pretty big limit on the commerce power: United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs. Everyone can see them. Lopez placed limits on federal power. Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.
What's more, Lopez interacts with another well known Commerce Clause case from the 1990s, Morrison v. Olson, to set a hard boundary on the extent of the Commerce Clause power. These cases, then, provide us with a meaningful limit on the power of Washington and they provide precedent. Upholding the ACA would violate neither of these and would adhere to an even more venerable Commerce Clause case (satisfying stare decisis) while not dismantling the existing limitation on Congress' Commerce Clause authority (satisfying the meaningful limits requirement).