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.