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Old July 9, 2012, 01:56 PM   #20
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Join Date: December 13, 2005
Posts: 2,535
Al, that is clearly a correct restatement of the decision on the commerce clause. The issue opened by the Roberts rule, i.e. upholding an otherwise unconstitutional provision as a tax despite vociferous denial that it is a tax except as a matter of alternate pleading, is whether the commerce clause, or any other constitutional limitation, operates as an effective limit of any matter that could be construed as a tax.

Thus, the majority decision in Raich could be unnecessary if the tool used by Congress to regulate intra-state, non-commercial activity were merely taxed punitively.

If the Roberts rule dies soon, ideally at Roberts' own hand, and the commerce clause jurisprudence remains, this decision could be very useful. However, his reasoning also has the potential of an application leaving the commerce clause a virtual dead letter.
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