June 25--The U.S. Supreme Court will rule on the constitutionality of the Affordable Care Act this week, maybe as soon as Monday, and there have been reams written about what the ruling might be, and what it will mean.
Here are some thoughts -- from someone who covered the court for five terms, from 2003 to 2007, and who now edits the Free Press' editorial page -- about what we're likely to get.
The ruling itself
Most have identified Justice Anthony Kennedy as the pivot point on this ruling, as he typically is in closely drawn cases.
But from the beginning, I've believed Justice Antonin Scalia -- a more consistent court conservative -- will play just as important a role, and is at least as likely to mark the cleave between those on the court who believe the ACA's insurance mandate is constitutional, and those who don't.
That's because Scalia has, in a relatively recent case involving the scope of "commerce" regulable by Congress, expressed a particularly broad view -- broader, in fact, than the court itself had embraced before.
In Gonzales v. Raich, a case about whether Congress could use the Controlled Substances Act to regulate locally grown, medicinal marijuana, Scalia wrote that it could.
His reasoning was that medical pot, while not explicitly part of any interstate commerce, substantially affected interstate commerce. And so in seeking to regulate the commercial marijuana market (by trying to eliminate it) Congress had the power to do anything "necessary and proper" to pursue that end.
Scalia would limit Congress' "necessary and proper" clause powers only to the extent that they are related to actions that can be "reasonably adapted" to legitimate commerce clause powers.
In other words, Congress can do just about anything to fulfill its commerce clause authority.
Reaching beyond interstate commerce to regulate home-grown, never-sold pot is not fundamentally different from compelling patients (and let's face it, everyone becomes a patient at some point) to carry health insurance.
In order to strike down the insurance mandate, Scalia will have to depart from his opinion in Raich -- either by drawing some distinction between that case and the health care reform, or by (very unlikely) declaring himself wrong in Raich.
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