Curiously in Comstock, Kennedy rejects Lee Optical as the test for Commerce Clause cases.

The terms “rationally related” and “rational basis” mustbe employed with care, particularly if either is to be usedas a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamentalliberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must beone of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, andthat it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487–488 (1955).This formulation was in a case presenting a due processchallenge and a challenge to a State’s exercise of its ownpowers, powers not confined by the principles that controlthe limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us.

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thoughtthat the particular legislative measure was a rational wayto correct” an evil, is the proper test in this context.Rather, under the Necessary and Proper Clause, applica-tion of a “rational basis” test should be at least as exactingas it has been in the Commerce Clause cases, if not more so. Indeed, the cases the Court cites in the portion of itsopinion referring to “rational basis” are predominantly Commerce Clause cases, and none are due process cases.

There is an important difference between the two ques-tions, but the Court does not make this distinction clear. Raich, Lopez, and Hodel were all Commerce Clause cases. Those precedents require a tangible link to commerce, not a mere conceivable rational relation, as in Lee Optical. “‘[S]imply because Congress may conclude that a particu-lar activity substantially affects interstate commerce doesnot necessarily make it so.’” Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment)). The rational basis referred to in the Com-merce Clause context is a demonstrated link in fact, based on empirical demonstration. While undoubtedly deferen-tial, this may well be different from the rational-basis test as Lee Optical described it.

I have equated Lee Optical rational basis adjudication as a form of judicial abdication. I’m glad to see AMK is on top of this this.

Kennedy also puts forward, what seems to me at least, a new formulation of necessary and proper clause jurisprudence.

Respondents argue that congressional authority underthe Necessary and Proper Clause can be no more than one step removed from an enumerated power. This is incor-rect. When the inquiry is whether a federal law has suffi-cient links to an enumerated power to be within the scope of federal authority, the analysis depends not on the num-ber of links in the congressional-power chain but on the strength of the chain.

Look for “strong chains” to find their way into future briefs.