Buono and the Commerce Clause

[Paul Horwitz]

On the Volokh Conspiracy blog, Orin Kerr recently had a post asking readers what, assuming the current state of Commerce Clause doctrine, would constitute a sufficient connection to interstate commerce to justify the recent health care legislation.  Many commenters just could not accept his premise.  *No* hook would suffice, they said, because the Commerce Clause just does not allow Congress to legislate in this field in the way the statute does.  
We might say the same thing here.  Per Earl's remarks on this thread, whether a case is "significant" or not, and whether a government action in this field "stops" anyone from doing anything, may be relevant; on some views of the Establishment Clause, it may even be dispositive.  On other views of the Establishment Clause, however, the key question is not whether anyone is offended by a government action, whether that action is significant, or whether anyone is coerced by that action; it is whether government is entitled to engage in the action *at all.*  If one takes the view, which may be wrong but certainly is not crazy, that the Establishment Clause disables the government from making certain kinds of statements on questions of religious truth, then the key question is whether government has made such a statement, not what the audience reaction to it is.  Similarly, in theory we would say that certain actions are beyond Congress's powers under the Commerce Clause, no matter how few people are bothered by it.  Congress either has the power to act or doesn't, regardless of popular sentiment.
Now, a dose of realism is necessary here.  Not every statement by government is treated as a statement about religious truth, and surely some of the reason for this is precisely that the vast majority of us don't take such statements to be religious, even if a few outliers do.  Conversely, the Court's sense of the scope of the Commerce Clause, or of any other constitutional power, is hardly insensitive to our sense of the outer limits of what is publicly acceptable or not.  
Even so, I respectfully think that Earl's observations about significance and coercion aren't knockout punches.  Our sense of what is "significant" or "coercive" is probably always going to be an inevitable and unavoidable element in our understanding of the Establishment Clause.  But, on some quite reasonable readings of the Establishment Clause, they will not be the only, or even the determinative, factors.  The key question will remain whether a particular government statement is the kind of statement about religion that government is disabled from making, and that question won't depend directly on the number of people who are offended by it. 		 	   		  
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