February 08, 2012
The Supreme Court will soon consider the Affordable Care Act. Some argue that the challenge to the individual mandate is about federalism -- the allocation of power between federal and state governments in our republic. But a close look at the Constitution shows that this is false.
The Constitution gives Congress power "to regulate commerce ... among the several States."
Anything outside this description falls to the states to govern. All prior Commerce Clause challenges to federal laws have claimed that the matter was not "commerce" or not "among the States," and thus beyond Congress's power. The court has held, for example, that gun possession near schools and domestic violence are not national, economic matters but local, non-economic ones, so the states -- and not Congress -- regulate them. Federalism determines which government may set policy for the matter.
Read more from The Times-Picayune here.
Last updated Thursday, February 9, 2012, at 9:41 a.m.
Professor Rebecca Brown of the University of Southern California Gould School of Law delivered “Freedom of Speech 2.0” at the 2012 Phelps Lecture held Wednesday (
Feb. 8) night at Tulane Law School.