The Arch Conservative Who Holds The Key To A Supreme Court Obamacare Victory - Forbes
06/2012 @ 7:58PM |171 views The Arch Conservative Who Holds The Key To A Supreme Court Obamacare Victory





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The countdown has begun to this month’s Supreme Court arguments on the constitutionality of key provisions of the Affordable Care Act—a.k.a. Obamacare.
While most are focusing on ‘the main event’—the constitutionality of the mandate requiring Americans to buy health insurance whether they want it or not—the Court will also hear arguments on whether the remainder of the law can survive if the mandate is declared unconstitutional. SCOTUS will additionally decide on a challenge put forth by various states attempting to roll back the ACA’s expansion of Medicaid.
We know what the public is rooting for—according to a Gallup Poll published last week, 72 percent of Americans believe the mandate is unconstitutional. Of course, we also know that the Supreme Court is not supposed to decide legal issues based on public opinion.
Typically, court watchers have their eyes firmly peeled on Justice Anthony Kennedy as the potential swing vote that can push a decision into the column of the Court’s more liberal group of Justices or in the direction of the conservatives. But the battle over Obamacare promises to focus on another, more unexpected jurist seated on the highest court in the land.
Who is this unlikely ‘swing’ vote that could tip the balance in favor or against?
None other than arch conservative and constitutional ‘originalist’, Justice Anton Scalia.
Scalia? I can feel the collective rising of hearts into the throats of healthcare reform supporters everywhere.
If you believe that Supreme Court Justices vote their politics and ideology rather than reaching decisions based on their interpretation of the law and Constitution —and note that a full 75 percent of Americans believe precisely that— Obamacare backers have good reason for concern.
However, if you are like me (possibly foolishly naïve) and you believe that the Supreme Court of the United States performs its critical function as they are intended to—without regard to the politics of the day—you might just be heartened to learn that Justice Scalia may represent the best hope for the survival of the key elements of the Affordable Care Act—that is if survival is what you are hoping for.
It’s all about a 2005 Supreme Court case, Gonzales v. Raich, and a surprising 0pinion written in that case by Justice Scalia.

Before we take a look at what Scalia had to say, it’s important to understand that the legality —or illegality— of the insurance mandate has everything to do with how one interprets the power granted to Congress to do what it believes is necessary and proper to regulate interstate commerce.
Noted Constitutional expert, Lawrence Tribe, summed up the argument in support of Congress having the authority to bring about mandated health insurance during a debate held last year at Harvard University. Tribe argued that allowing people to remain uninsured while still being assured of emergency care in emergency room settings shifts medical costs to others. Tribe notes that since “there’s no right to force a society to pay for your medical care by taking a free ride on the system”, we are all economically affected by these decisions people make and that is what gives rise to Congress’ power to regulate the same.
Opponents of this argument suggest that requiring people to buy a product that they don’t want is simply well beyond the powers granted to the Congress by the Constitution and is a dangerous overreach of Congressional power.
That brings us back to Justice Scalia and the case of Gonzales v. Raich.
Here’s what happened.
The Gonzales case centered around the question of whether Congress , via The Controlled Substance Act, had the authority to interfere with California residents growing medical marijuana in their own homes for their own personal consumption when (a) California state law permitted the same and (b) the law only allowed personal consumption of what a Californian grew—meaning that their behavior had nothing whatsoever to do with ‘commerce’, interstate or otherwise.
While the ‘trend’ of the Court has long been to expand the regulatory powers of Congress under the Commerce Clause beyond the stricter interpretation of the Constitution allowing Congress to regulate only activity that “touches” the flow of commerce through the states to a broader definition including anything that might “affect” commerce throughout the country, conservatives on the Court have long attempted to turn back the tide of this expansion.
So why would Scalia go along with such an expansion, which he did in Gonzales v. Raich, when the case clearly was all about someone in California growing some pot for his or her personal use and who wasn’t selling anything into commerce?
Scalia, in what appeared to be something of an aberration for him given his allegiance to a far more restrictive interpretation of constitutionally granted powers, chose to base his opinion not on a strict interpretation of what the Constitution says—but on earlier Supreme Court decisions providing for a more expansive view of the powers.
Here’s what Scalia wrote in his concurring opinion in Gonzales -
The court [has] recognized that [non-economic activity can] be regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,’” Scalia wrote. Then, he endorsed a rather broad interpretation of the Necessary and Proper Clause: “As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.
Via National Review
Considering that Scalia had followed his tendencies toward a more restrictive interpretation of Congressional powers under the Commerce Clause in two cases that immediately preceded Gonzales, his words came as quite a surprise to many.
So what’s up with Justice Scalia here?

you believe that Supreme Court Justices do vote their ideology and politics, then you can explain Scalia’s opinion away by suggesting that Scalia did not like that California was allowing people to grow a substance that the federal law has deemed illegal and decided to put a stop to it. But this is not Justice Scalia’s modus operandi. Indeed, he has come down in support of both a pot dealer and crack user in previous cases where he believed the law fell on their side. Further, if Scalia’s intent was to strike down the California medical marijuana law because he didn’t like it, he could have simply voted with the majority and, having gotten the desired result, not dug himself a hole by writing a separate, concurring opinion.
As a result, Justice Scalia’s opinion in Gonzales puts him in a pretty weird spot should he want to do away with the mandate included in Obamacare—and the defenders of the law know it. This is evident in the briefs filed by the government in support of the law which rely heavily on Scalia’s opinion in Gonzales.
So, what does it all mean?

Justice Scalia could decide that Gonzales was a ‘one time thing’ and blow right past his previous opinion by deciding to vote to strike down the mandate. However, if consistency is important to him—and consistency is, typically, a pretty big deal for Supreme Court Justices—this may be difficult for him to do and he may well find himself constrained to support the authority of Congress to legislate the insurance mandates based on his earlier opinion.

Still, Supreme Court Justices are the 800 pound gorillas in the room—meaning they can do whatever they want to do. This also goes for the liberal contingency on the Court, some of whom could decide that making people buy something they don’t wish to buy may be giving the government more power than they believe is appropriate.
Bottom line is that Justice Anton Scalia is going to be the ‘gorilla’ to keep you eye on as one of the most significant court battles in the nation’s prepares to get underway.

contact Rick at thepolicypage@gmail.com