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I am a lawyer, and (allegedly) a legal historian, and whatever Ronald Dworkin's views are on this, I strongly suspect that we'll have some statements by the Supreme Court suggesting that the necessary and proper clause is not a universal solvent that can obliterate the Constitution's (and particularly the Tenth Amendment's) restrictions on the federal government. This should be at the heart of the decision on the Affordable Care Act, along with a determination about the action/inaction argument (to the effect that Congress can regulate commerce, but not compel anyone to engage in commerce). I thought a prior post by Seth Tillman did a credible job exploring these issues. Proponents of the Constitutionality of the ACA like to cite Marshall's famous opinion in the national bank case, and it is, certainly, a ringing endorsement of sweeping congressional power, but the question remains, if the ACA's individual mandate is constitutional, are there any limits left to Congress's power? No proponent of the ACA, to my knowledge has successfully been able to articulate what those limits might be if the ACA is upheld. I suspect that if the individual mandate is thrown out, probably by a 5-4 vote, it will be the lack of any such limits that will be the focus of the opinion. It strikes me that this conclusion follows from the thrust of the questions the Justices asked. Stephen B. Presser Raoul Berger Professor of Legal History Northwestern University School of Law Professor of Business Law, Kellogg School of Management 357 E. Chicago Ave. Chicago, IL 60611
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