Limiting the Commerce Clause

Take a look at this excellent piece by George Will that appears in The Washington Post. He takes up the question of the limits of the legislative branch in applying the commerce clause, and the proper role of the judiciary to correct periodic abuses regarding that application in cases such as Obama's health care law.

Will cites a ruling penned by a Texas Supreme Court judge named Don Willet in a recent case in that state to make his point about the health care law. Willet certainly appears brilliant.

Willett says: In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands."

Thus a legislature's judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. "The political branches decide if laws pass; courts decide if laws pass muster," wrote Willett. Judges must recognize that legislators' policymaking primacy "is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence."

What Willett says of the states' police power is applicable to Congress's power under the commerce clause: "When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction." And: "If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable."