As to Congress being able to enact the same statute under the Commerce Clause, the answer is likely: perhaps so, but it doesn't matter, for Congress picked the Spending Power quite specifically, and having done so Congress is stuck with the enumerated power it selected. It's not hard to think of good reasons why this should be so.
Just wondering, what are those good reasons?
Assistant Professor of Law
Harvard Law School
Cambridge, MA 02138
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