Takedown.
The claim of an unbroken historical understanding of the Commerce Clause put forward by Obamacare supporters is nothing more than a myth cooked up for the occasion. But to supporters of the ACA, it is a necessary myth, which they invoke in order to lend legitimacy to their case for the constitutionality of the law. And on this point at least, for all their anger and resentment, they are correct. It is far easier to extend Wickard v. Filburn to the case of supposed inaction if that decision were on all-fours with Gibbons.
via Justice Kennedy’s Million Dollar Question | Hoover Institution.