Why Scalia has to rule *for* the Obama Healthcare Law - great article

[underpants]

In 2005, Scalia laid out his commerce clause jurisprudence in a medical-marijuana case, Gonzales v. Raich . The issue in Raich was whether the federal Controlled Substances Act, which criminalizes the cultivation or possession of marijuana — including its cultivation and use solely for personal medical purposes — exceeds Congress' power to regulate "commerce among the several states" under the commerce clause.

Scalia cited approvingly one of the most expansive interpretations of the commerce clause in constitutional history, Wickard v. Filburn , a post-New Deal decision that allowed Congress to regulate the production of wheat for personal consumption on the farm because of the impact such production, when aggregated, would have on the regulated wheat market.

As Scalia summarized, citing precedent, "(W)here Congress has the authority to regulate interstate commerce, 'it possesses every power to make that regulation effective.'"

But if Scalia remains faithful to his analysis in Raich , the issue for him will not come down to whether the commerce clause itself extends to inactivity. The question will be whether the individual mandate is a permissible exercise of Congress' power under the necessary and proper clause, and based on his opinion in Raich, it is difficult to see how he could find the mandate unconstitutional.

http://www2.timesdispatch.com/news/2011/mar/06/tdcomm02-why-obamacare-will-survive-in-the-supreme-ar-884246/

[Guy Whitey Corngood]

1. Fat Tony will do whatever the guy with the fattest money bag tells him to do. nt

[Demeter]

2. Agreed. Consistency is not his forte with regards to Rule of Law

He's more a Rule of the Jungle kind of guy.

[Guy Whitey Corngood]

11. Yup, I mean whatever happened to "states rights" during Bush v Gore.? nt

[bluestateguy]

3. Scalia does not "have" to do anything

Being a hypocrite and ignoring his own past precedents has never stopped him, or any other USSC justice before.

I remember people saying that surely Gore would win the Bush v. Gore case because the conservative justices were all for states rights. Uh huh.

[OneTenthofOnePercent]

4. I'm still not a fan of the mandate...

I understand the concept that congress can regulate the exchange of goods/service (commerce)... even intrastate because intrastate commerce can effect interstate commerce. And I even agree with that. However, if someone were *not* to partake in commerce whatsoever (they remove themselves from the market)... what gives congress the power to regulate someone "not participating in commerce"? By definition, commerce is not happening when people don't buy things - and congress' power lies in the ability to regulate the commerce that does happen.

I mean, if congress has that kind of power can't they just mandate that every rich person and corporation who sits on their wealth (which fuels recession) to go out an actively spend their money? Could Congress penalize people who don't buy a car every 3 years because the car industry is floundering? Could congress force people to buy and hold a certain amount of stock to bolster the NY Stock Exchange?

I'm just not sure I love the idea of congress getting to decide *when* people participate in the marketplace. I also feel that this is a key difference between the Individual Mandate and Wickard v Filburn. In that case, commerce was already happening (intrstate) and congress was able to regulate existing commerce... with a mandate, congress is forcing commerce to happen under penalty of law. In the most rudementary sense, a mandate directly eliminates freedom (free choice) of the consumer to participate in commerce.

[joeglow3]

10. DING DING DING DING DING We have a winner.

[localroger]

12. Because you don't have the option of not partaking

You are human; you have a body; it will get old, probably get sick or injured on occasion, and eventually die, all of which most likely in a way that involves the medical industry. Thus, you will enter the medical market whether you want to or not. This is not quite in the same league as paying for schools via your property taxes even if you don't have kids; the argument there is that it benefits "society." The argument for the mandate is that it benfits YOU.

This is the logic they're using; I'm not saying myself that it's right or good. I'd probably find it upsetting if I was a twentysomething "immortal" making the sensible gamble not to "waste" all that money on premiums. But as things are those sensible twentysomethings who get in a bad auto crash are screwed, and my late fortysomething premiums pay for their cheapness, so from my perspective the mandate is an annoying but necessary thing.

[OneTenthofOnePercent]

16. Correct, but congressional power is congressional power

I know the end-game here is the right thing and that everyone should have insurance... but the thing about taking an "end justifies the means" approach is that it can always come back to bite you in the ass. Where is the line drawn if congress has the power to force people to enter markets? Congress and the whitehouse wont always be a left as it is now. Hell, SCOTUS and the house are already GOP overrun.


I still believe it is a choice for anyone to choose to buy insurance... people just have to be held responsible for their choices. I don't believe that congress should have the power to eliminate free choice from people the way the mandate requires.

What we need is true single payer healthcare.

[Motown_Johnny]

15. I am more worried about an (R) mandating private retirement programs

where we must participate in a for profit retirement plan.


I see very little difference between mandating you purchase health care and mandating you purchase investments for your retirement, other than the fact that a few crooks can manipulate the markets and steal your retirement money.

[Exilednight]

17. Very well argued. n/t

[BzaDem]

18. You are looking at the wrong clause in the Constitution.

The question is not whether the mandate is a regulation of commerce.

The question is whether the mandate is necessary and proper for another reguation of commerce to work.

In the bill, Congress mandated insurance companies sell to all at the same rate. That is undisputedly a regulation of commerce. The mandate is necessary to ensure the this regulation does not destroy the insurance market. This happens to be a fact that basically all healthcare economists agree with, but even if you personally disagree with this, Congress has wide latitude to determine what is necessary and proper. This determination is only subject to minimal judicial review. (See McCulloch vs. Maryland and the subsequent 200 years of jurisprudence governing the necessary and proper clause.) In fact, to overturn a law because it is not necessary and proper, a court has to find that Congress did not even have a rational basis in concluding so. The necessary and proper clause is extremely broad and does not distinguish between mandates and other laws.

That's all there is to it. All of these metaphysical questions about what is activity/inactivity are irrelevant.

If you think it is a bad law, the way we handle bad laws in this country is by electing representatives to repeal them. We do not invent new doctrine contradicting hundreds of years of jurisprudence out of thin air to attempt to constitutionalize our preferences against the will of the majority. There are plenty of laws Congress has the power to enact that are FAR worse, and FAR more invasive, than the individual mandate.

If we overturn 200 years of jurisprudence and ratchet up the necessary and proper requirement to a level higher than it has ever been in our history, many liberal economic regulations will soon be on the chopping block. It is amazing to me that any liberal believes we should go there (even if they dislike the mandate).

[Firebrand Gary]

5. Scalia has more substance than we are giving him credit for.

My instinct tells me that Justice Scalia will raise a few eye brows with his ruling. I just can't imagine him doing the "heavy lift" for the GOP, If I were a betting man, i'd bet that Antonin see's the Republican party as lazy and looking for him to do their work.

I might be wrong, but I don't see him carrying the GOP's water on this issue.

[Cool Logic]

6. It seems to me that there is a huge difference...

Although I disagree with Gonzales v. Raich ruling, the issue was voluntary commerce. On the other hand, the individual mandate in the AHCA forces people to engage in involuntary commerce.

[The Second Stone]

7. The mandate is a huge boon to the insurance industry

and it is conceivable that every conservative justice will uphold the law for that reason, whether explicit or not. They never have to face election and their jobs are secure and their income secure no matter how they rule. Keep in mind that CJ John Roberts has never once in his career ruled against corporate interests in a final decision.

[FiveGoodMen]

8. That's what I think, too.

I'd like nothing more than for the SC to overturn that horrible, corporatist (i.e. fascist) mandate.

But they won't.

Obama was put there for a reason.

[saras]

9. Look at the example he's using also

They ruled that the *regulated what market* had a right to make a profit that overrode people's right to grow their own food for their own private consumption on their own farms.

"No, you can't grow that. If you grow that, you'll eat it, and then you won't buy our product instead."

No wonder he liked it as a precedent. It can be applied ALL KINDS of places.

[unblock]

13. it's an income tax and taxes on income are constitutional. it's really simple.

you get a 100% credit for the amount the tax if you buy health insurance, but otherwise you have to pay a tax on your income.

people call the tax a "penalty" and lack of sufficient income an "exemption" but it's really simple, constitutionally speaking. your income over the income threshold is subject to an income surtax, but it's fully offset by a credit if you buy insurance. nothing that isn't done in other contexts many times over in the tax code and the supreme courts have upheld.

they're NOT forcing you to participate in commerce you don't want to. all they're doing is taxing your income. they are OFFERING a credit on your income tax if you CHOOSE to participate in the health insurance market, but you're completely free to choose otherwise.


note that in order to be constitutional in this view, it's critical that there is an "exemption" for low income. without that exemption, it wouldn't be a tax on income, it would be a tax on existing.

[UTUSN]

14. Does anybody think SCALIA would rule anything scrupulously?!1 Just asking. n/t