Obama DOJ on Scalia, Raich and Health Care Reform

The Obama DOJ has filed its first brief in Department of Health and Human Services v the State of Florida, the case pending before the Supreme Court over the constitutionality of the Affordable Care Act, the health care reform bill passed in 2009. And it is aimed squarely at Justice Scalia, arguing that he must uphold the insurance mandate provision if he is going to be consistent with his own past opinions.

In particular, they point to his concurring opinion in Raich, which was, in my view, one of the worst rulings the Court has handed down in a very long time (it ranks up there with Kelo). This was the case that upheld federal authority to continue to enforce the Controlled Substances Act against medical marijuana patients even if they are in full compliance with state and local laws. The court ruled that Congress, using the power granted to them by the Interstate Commerce Clause, had the authority to punish people for growing and using their own marijuana, an action that was neither interstate nor commerce.

This was one of those cases — and there are many — when Scalia and Clarence Thomas were on opposite sides. Scalia and Kennedy joined the liberal members of the court to form a 6-3 majority, leaving O’Connor, Rehnquist and Thomas in dissent. The DOJ uses that to urge Scalia to continue the same line of argument he made in Raich:

[Angel] Raich claimed that Congress could not regulate her cultivation of marijuana for personal use because she was ‘entirely separated from the market. The Court rejected that artificial limit on Congress’s commerce power, because “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,” (Scalia, J., concurring in the judgment). The same principle applies here. Because of human susceptibility to disease and accident, we are all potentially never more than an instant from the ‘point of consumption’ of health care.

Will this tactic work? TPM talks to some experts:

“The concept here is about a body of laws developed over the last 60 or 70 years that has adopted a very expansive view of federal power,” Orin Kerr, professor of law at George Washington University and a former clerk for Justice Kennedy, told TPM. “The precedents don’t foreclose the idea one hundred percent, but they seem to point relatively directly to the conclusion that the justices will vote to uphold the mandate.”

The Obama administration claims that the exercise of federal power in Raich is at least as legitimate as the insurance mandate, arguing that letting people remain uninsured undercuts regulation of interstate commerce by passing medical costs onto taxpayers. Georgetown legal scholar and outspoken Affordable Care Act opponent Randy Barnett, who represented the plaintiffs in Raich, fears Scalia may buy into this.

Others believe he’ll find a way to oppose the mandate. The more cynical among them argue that Scalia’s decision in Raich was motivated by a partisan desire to “punch some pot smoking hippies in the face,” and that he won’t hesitate to take a different tack when it comes to the health care reform law.

To that end, he may have an escape hatch: as Judge Henry Hudson noted in his ruling to strike down the mandate, Raich was about regulating “activity” (i.e. growing marijuana in one’s backyard) while the mandate is about regulating “inactivity” (i.e. not buying health insurance). Invoking this could help Scalia fend off charges of inconsistency.

David Rivkin, an outside counsel for the plaintiffs in the health reform case, told National Review he’s “very comfortable” that Scalia will seize upon this distinction to strike down the mandate.

The administration, conscious of this, attacks it as a distinction without a difference: “That effort to fashion an unprecedented limitation on the commerce power should be rejected.”

Scalia’s more recent actions hint that he’s lost his enthusiasm for federal power since Raich: one year ago, he signed onto a dissent by Justice Clarence Thomas on the court’s refusal to hear a case that would provide the justices an opportunity to narrow the Commerce Clause.

This will be very interesting to watch. The DOJ is right that if Scalia is going to be consistent he has to uphold the mandate. If the commerce clause gives Congress the power to regulate behavior that is neither interstate nor commerce but has a clear effect on interstate commerce, as Scalia has said in other cases, then it surely has such power here because failing to get health insurance has an enormous impact on the insurance market and on health care costs for everyone else.

Scalia’s premise may be wrong, of course, and I think it often is. But there is a much stronger connection between the actions regulated here and interstate commerce than there was in Raich.

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What Are Your Thoughts?leave a comment
  • Someone correct me if I’m wrong, but I’m pretty sure they don’t need Scalia for the mandate to hold. It’s sort of like Obama trying to win South Carolina; by the time you get to that point, the decision is foregone anyway.

  • Abby Normal

    If Scalia does buy in to the inaction limitation to the commerce clause and the health care law is struck down as a result, does that mean if I happen to find marijuana growing on my property I can keep it? It’s a weed. In many places it grows just fine without assistance. If I’m not cultivating it my inaction would put it outside the federal government’s reach, right?

    /snark

  • eric

    The more cynical among them argue that Scalia’s decision in Raich was motivated by a partisan desire to “punch some pot smoking hippies in the face,” and that he won’t hesitate to take a different tack when it comes to the health care reform law.

    Count me among the cynics.

    Scalia’s more recent actions hint that he’s lost his enthusiasm for federal power since Raich

    Of course he has, there’s a Democratic administration in power using it. He’s predictably partisan – he will support any and all expansions of executive power by conservatives and for conservative causes, and he will suddenly become concerned about it when its being exercised by or for liberals (maybe I should say non-conservatives). In November 2012, 2016, or 2020 he’ll suddenly change his mind again and decide he’s all in favor of an expansive interpretation of the commerce clause.

  • Jordan Genso

    @1

    But it would make a political impact if one of the known conservative judges upholds the mandate. It would make it slightly more difficult for the Tea Party Republicans to rail against “activist judges” if they’d be railing against Scalia at the same time.

  • AreaMan-

    They have no idea who they would need to hold. Even if you start from the assumption that the four more liberal members of the court (Breyer, Ginsburg, Sotomayor and Kagan) would vote to uphold it, they would still need one more. They aren’t gonna get Thomas and they certainly know that (not because of any bias stemming from his wife but because it is consistent with his Commerce Clause jurisprudence). Kennedy is probably their best shot, but he’s hardly a given. If I had to make a prediction, I think they’ll get Kennedy. But the DOJ is smart to focus on Scalia in their brief.

    Contrary to popular belief, neither the liberal nor the conservative blocks on the court are monolithic and of one opinion. Thomas and Scalia disagree more often, and on more important things, than most casual observers would ever guess (I’ve written many times about the absurd myth, popular among liberals, that Thomas is Scalia’s lapdog). Breyer is a wildcard for the liberal wing and Kennedy for the conservative wing (though he is more predictable than Breyer, I think). And there have been many cases that split both groups apart and resulted in very unusual coalitions in the majority and minority.

  • eric says:

    Of course he has, there’s a Democratic administration in power using it. He’s predictably partisan – he will support any and all expansions of executive power by conservatives and for conservative causes, and he will suddenly become concerned about it when its being exercised by or for liberals (maybe I should say non-conservatives). In November 2012, 2016, or 2020 he’ll suddenly change his mind again and decide he’s all in favor of an expansive interpretation of the commerce clause.

    I’m sure this is how you think it works, but it doesn’t. Scalia is relatively predictable in terms of ideology, but not necessarily in terms of partisanship. I can think of many examples. In 2009, for instance, he joined the four liberals on the court in a ruling that rebuked the Bush administration for trying to prevent New York from instituting stricter regulations on predatory lending. And by the way, the commerce clause restricts Congress, not the president, so who is in the White House doesn’t really matter on that score.

  • tomh

    I think the decision is going to rest on what Kennedy has for breakfast that day.

  • Michael Heath

    I do think this is an historic case and hope the goings-on within the court are sufficiently reported. I’m concerned a 5-4 ruling could lead to violence if President Obama wins and the ’12 GOP presidential nominee’s chances are not great.

    Gov. Romney continually promises to cut Obamacare off at the knees if he wins, via executive orders. It will be interesting to see how his campaign reacts if Obama wins in court (assuming Romney’s the nominee or still hot in the hunt).

    Ed, have you taken a position on the constitutionally of the universal mandate?

  • Michael-

    I think the interstate commerce clause clearly applies here; unlike Raich, health insurance actually is a national market. But that doesn’t necessarily mean the mandate is constitutional. However, I think they did a very clever thing in writing this bill. The mandate is implemented through the tax code, which Congress is explicitly given the power to do in the constitution. I think that makes it very difficult to strike it down without overturning a wide swath of precedent. And the tax code has been used to reward and punish behavior for a long time. I think it gets upheld.

  • d cwilson

    Ed is right that the idea that Thomas is Scalia’s puppet isn’t accurate. Scalia was once asked how he differed from Thomas and he replied with words to the effect of “I’m not a lunatic”. Yeah, they often come down on the same side, especially when it comes to social issues. But they do disagree sometimes as well.

    But I think convincing him to rule in favor of the ACA is a longshot. There are no hippies to punch here and I think his libertarian tendencies will overrule his views on the Commerce Clause in this matter.

  • garnetstar

    My problem with Scalia is not his being partisan in political matters. It’s that he seems not to have any of the judicial ethic that says that he must uphold the law, or Constitution, even when it may conflict with his personal opinions. Don’t judges take an oath to do that?

    Scalia seems to rule consistently according to the dictates of his religion, ignoring the Constitution when it’s inconvenient. Or else he just idiosyncratically interprets the Constitution so that, coincidentally, it just happens to say whatever Catholic dogma (Scalia’s particular brand) requires.

    So I have no respect for him at all.

  • bobcarroll

    Surely, Scalia’s mind is large enough to ignore this little hobgoblin?

  • Michael Heath

    d cwilson writes:

    I think his libertarian tendencies will overrule his views on the Commerce Clause in this matter.

    I’ve never perceived Justice Scalia ever having any libertarian tendencies in his opinions. I have seen him repeatedly defend legislation conservatives favor by abandoning his textualist approach and embracing a political ideology I think is best described as a democratic conservatism.

    That’s not say his rate for overturning legislation is low, in fact he’s on the opposite end of that spectrum where only Thomas is more inclined to overturn legislation (as measured near the tail-end of the Rehnquist Court). Only that J. Scalia uses this approach to get results favored by contemporaneous conservatives.

  • juice

    Did someone actually write that Scalia has libertarian tendencies? Did I just see that?

  • Chris from Europe

    @juice

    I think I understand how it’s meant. That’s the result of conservatives and other people I wouldn’t associate with liberty declaring themselves to be libertarians.

  • matty1

    Wasn’t there a quote from Mr Scalia to the effect that different judicial philosophies are like spectacles and he puts on whichever pair lets him see his way through a case?

  • garnetstar

    @matty1

    He just came right out and said that? How contemptible. You’d think that he’d at least try to hide his breaking his oath.

  • exdrone

    Scalia:

    marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market

    Is that the same as owning a camera or a computer is never more than an instant from distributing child pornography?

  • jesse

    I don’t have a particular problem with judges being ideologically influenced, since that is why we use judges at all.

    But frankly, Scalia in particular seems to have this idea that property defines all — that is, thinking about what I have seen Ed write about him and the decisions he has made, Scalia is one of those folks who think that if you have money you must automatically be better than anyone else, and that decisions made on an economic basis are by definition more socially useful and indicate merit.

    That is, if it’s profitable, it must be good.

    This isn’t uncommon among economic libertarians — in fact it’s almost always the big giant unspoken assumption. That is, that social utility is measured by how many people want something or can be convinced that they do. This is why they always say “if someone did X bad thing the market would punish them” which to me always assumes frictionless markets full of people with telepathy. (Another one is that efficiency is always good. Sometimes it isn’t — imagine if decisions to execute someone could be made within 24 hours).

    Anyhow, Scalia’s magical thinking with regard to the merit of property can be expected to drive any decision he makes. Since affordable health care benefits people without property, i.e. poor brown people, he’ll rule against.

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