2Center for American Progress | Paul Clement’s Fake Constitution: 3 False Claims in the Attorney’s Anti-Health Care Brief
which he words “regulae Commerce” do no apply. Moreover, Marshall explained, hepower o regulae somehing “implies in is naure ull power over he hing o be regu-laed.” As he Unied Saes explains in isreply brie , more recen Supreme Cour deci-sions esablish ha he power o “regulae commerce” includes he power o “promoe[commerce’s] growh” and o “oser” i.Te Aordable Care Ac regulaes rade in healh care services, and under Marshall’srule Congress has “ull power” over all orms o rade—including he power o requirepeople o ake cerain acions wihin he healh care marke. Clemen’s unprecedenedreading o he Consiuion is nohing less han an atemp o rewrie i.
2. Clement’s hyperbole about limitless government power
Troughou his liigaion Aordable Care Ac opponens have resed on he alse claimha i healh reorm is upheld, i will somehow resul in Congress passing whaever lawsi wans. In Clemen’s words, he only way or he Cour o uphold he healh reormlaw is o accep “boundless inerpreaions o he Commerce Clause” ha would enableCongress o regulae anyhing a all.Once again, his is alse. Te Consiuion’s words empowering Congress o “regulaecommerce” imply ha maters ha are no commercial in naure res ouside o hisgran o power. Tus, in
he Supreme Cour sruck down a ederallaw banning guns in school zones because his law had litle relaionship o commer-cial maters. Likewise, in
he Cour sruck down he Violence Agains Women Ac because he law was no economic in naure. aken ogeher,
esablished ha economic regulaion is well wihin he Unied Saes’sauhoriy, bu noneconomic laws are ar more consiuionally suspec.Because he Aordable Care Ac regulaes he naional healh care marke—or one-sixho he naion’s economy—his law is unquesionably commercial in naure. Te samecanno be said abou many noneconomic laws ha would be beyond Congress’s powero regulae commerce. In is brie, he Unied Saes liss “amily law, general criminallaw, or educaion” as examples o laws ha exceed Congress’s power o regulae com-merce. Tus, a long lis o laws ranging rom ederal murder laws, rape and assaul laws,and ederal ruancy laws, o ederal child neglec laws will sill be unconsiuional orCongress o regulae afer he Aordable Care Ac is upheld.
3. Clement’s Scalia problem
Even i Congress didn’ have he power o enac an insurance coverage requiremen underis power o regulae commerce, he Consiuion’s “Necessary and Proper Clause”—