Paul Clement Schools Justice Sotomayor on Federalism

Justice Sotomayor throws a spitball, and Clement knocks it out of the park, anyway:

JUSTICE SOTOMAYOR: Could you tell me, do you think the States could pass this mandate?

MR. CLEMENT: I represent States. I do think the States could pass this mandate, but I -­

JUSTICE SOTOMAYOR: Is there any other area of commerce, business, where we have held that there isn’t concurrent power between the State and the Federal Government to protect the welfare of commerce?

MR. CLEMENT: Well, Justice Sotomayor, I have to resist your premise, because I didn’t answer yes, the States can do it because it would be a valid regulation of intrastate commerce. I said yes, the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.

Poor Sotomayor, she just can’t wrap her mind around the fact that the Federal Government’s powers are supposed to be limited.

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