The power to regulate interstate commerce is given by the Constitution to Congress, not to the Supreme Court.

Health care is interstate commerce, amounting to 16 percent, or more, of the U.S. gross domestic product.

The Supreme Court may hold the health care reform law unconstitutional because, say, individuals are required to buy health insurance, or because the legislation coerces the states by threatening to withhold Medicaid money from them, or for some other reason.

Such an action by the court would be “regulating,” and thus amount to a transfer of the legislative function from the Congress to the court. It would be, ahem, legislating from the bench. Call the next case.

Powers McGuire


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