As those who were not lucky enough to get one of the few seats in the Supreme Court await word from today’s arguments, I will make my big but obvious prediction for the day: despite all of the real concern on the right and trumped-up-yet-hopeful-statements from the left about Scalia’s position on the Commerce Clause being murky, his questions likely will suggest a clarity which will not be comforting for the Obama administration.
The one case that ObamaCare supporters rely on to show that Scalia might be open to their bloated conception of congressional authority is the medical marijuana case, Gonzalez v. Raich. That case is not a good guide of Scalia’s position in this case for at least two reasons. First, the plaintiffs in Raich conceded that the federal government had the authority to pass the drug law in question in that case, and to regulate the drug (black) market. The challenge was instead to the application of that drug law to local conduct. Here, however, the states and NFIB have challenged Congress’s authority to pass the mandate at all and to thereby regulate individuals whose defining characteristic is their status outside of the regulated market—that is, their failure to purchase insurance. This makes the ObamaCare challenge much more in line with cases like United States v. Lopez and United States v. Morrison, both of which challenged Congress’s authority to pass the regulation in question, and in both of which Justice Scalia joined the majority in finding the laws to be outside of Congress’s constitutional authority.
The second reason that Raich is not a good guide of Scalia’s take on ObamaCare goes to Scalia’s view of precedent. Scalia has repeatedly said that he is a textualist, not a nut. As such, he tends to be more willing to adhere to well-established precedent—even if he would not agree with it in the first instance. It is thus worth noting that in many ways, Raich was just the 1942 case of Wickard v. Filburn with a different crop. There, like in Raich, the parties conceded that the federal government could regulate the interstate market (in Wickard, for wheat). And there, the challenge was to the “as applied” local activity. But for the reasons already discussed, ObamaCare is not a Wickard-do-over, and so Scalia likely will not feel as bound.
Finally, the government’s argument regarding necessary and proper—the clause that the left has argued will convince Scalia of the correctness of the Obama administration’s position—strikes me as the kind of argument that is likely to make Scalia, well, angry. Reduced to its essence, the government argues that Congress has put requirements on the health insurance market like covering individuals with preexisting conditions at controlled prices that will bankrupt the insurance companies, and the necessity of fixing the mess that they have made creates constitutional authority for Congress to reach outside of the system and drag people in to subsidize it. This is bootstrapping run-amok, and I sincerely doubt that Scalia will find it persuasive.