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A Few Thoughts on the Commerce Clause Analysis

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1 Response

  1. Anon321 says:

    The only way it makes any sense to me (and even then, I’m not convinced) is to understand the argument as a point about statutory interpretation. He’s saying that it’s permissible to impose an odd, unnatural reading on a statute if doing so is the only way to make it constitutional. But to do so, you first have to decide whether it would be constitutional under its natural reading. That makes some sense in the context of, say, a First Amendment overbreadth challenge. That is, before we impose a narrow, unnatural reading on this statute, we must first decide whether the natural reading would indeed be constitutionally overbroad — we can’t just say that the narrow, unnatural reading would be constitutional and leave it there. But in that context, imposing the narrow alternative reading actually changes how the statute operates and is enforced.

    It doesn’t seem to make as much sense in this context, though, because (at least as far as I understand it) the it’s-a-tax reading of the statute doesn’t change how the section operates or is enforced. What do you think?

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