COULD A CONSERVATIVE JUDGE SIDE WITH OBAMACARE?

February 10, 2011

As the challenge to Obamacare’s constitutionality approaches the Supreme Court, the question on everyone’s mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court’s most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law pause.

At the center of the Obamacare case are the Commerce Clause and the Necessary and Proper Clause. According to the Constitution, the federal government has the power to “regulate Commerce#…#among the several States,” and also to “make all Laws which shall be necessary and proper” to do so.

Over time, the Supreme Court has interpreted these clauses as giving the federal government broad regulatory powers — a trend that many conservatives have resisted. Today, the federal government can regulate not only “Commerce#…#among the several States,” but also any activity that “substantially affects” such commerce, even if that activity is non-commercial in nature.

Virtually any activity, of course, can be said to “substantially affect” interstate commerce. Therefore, in the eyes of the Supreme Court, the Commerce Clause gives the federal government license to regulate everything from how much wheat a farmer can grow — even if he’s not going to sell it — to the racial-discrimination policies of restaurants that serve food that has crossed state lines.

Six years ago, Justice Scalia helped to further this trend.

The case was Gonzales v. Raich, and the issue was whether the federal government had the right to forbid California residents to grow medical marijuana in their own homes, for their own personal consumption. It was a perfect test case: California law permitted medical marijuana, and the drugs, being illegal for the growers to sell, had absolutely nothing to do with commerce of any kind.

In a 6–3 decision, the Supreme Court sided with the federal government. Scalia fleshed out his views in a concurring opinion that was primarily based not on the Constitution itself, but on the Supreme Court’s ever-loosening interpretation of it.

“The court [has] recognized that [non-economic activity can] be regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,’” Scalia wrote. Then, he endorsed a rather broad interpretation of the Necessary and Proper Clause: “As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

He also argued, more or less, that once the government bans the interstate trade of an item, it can also ban the intrastate possession of it: “Not only is it impossible to distinguish ‘controlled substances manufactured and distributed intrastate’ from ‘controlled substances manufactured and distributed interstate,’ but it hardly makes sense to speak in such terms.#…#Marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market.”

Brian Fitzpatrick, who clerked for Justice Scalia in 2001 and 2002 and is now an associate professor at Vanderbilt Law School, says the concurrence came as a surprise — especially in the wake of two cases, Lopez and Morrison, in which Scalia voted to narrow the scope of the Commerce Clause. This makes it difficult to predict what position Scalia will take on the individual mandate. “I’m not sure if [Raich] is a one-time blip, and he’ll be back to the more traditional originalist understanding of what the Commerce Clause means,” he says. “Some people say drugs were involved [in Raich], and that may have influenced some of the justices.”

Most important, the Raich case did not raise the fundamental question posed by the individual mandate: Does the Commerce Clause give the federal government the right to forbid citizens not to buy something — that is, to regulate inactivity — so long as that inactivity substantially affects interstate commerce, or is a crucial part of a broader scheme of legitimate regulations?

Fitzpatrick says that’s a hard distinction to maintain; any regulation based on inactivity can be recharacterized as a regulation of activity: “If you breathe, you have to buy insurance. If you buy food, you have to buy insurance.”

But David B. Rivkin Jr., a lawyer for Baker Hostetler and the lead outside counsel for the plaintiffs in the Obamacare case, thinks the activity/inactivity distinction will prove crucial to Scalia. “I’m very comfortable about it,” he says. “His concurrence in Raich is utterly consistent with our position. Raich involved a completely different situation.”

True enough, the situations are different. But the Obamacare case offers Scalia a chance to fight the expansion of the Commerce Clause — and in Raich, he declined to do just that.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.