SCOTUS Watching

03.27.12

Will Scalia Rule in Favor of Obamacare?

The first arguments about Obamacare at the Supreme Court focused on whether or not now was the appropriate time for the court to take up the case. Reports indicated that most justices were ready to tackle it.

The real fun now begins with a discussion over the individual mandate, the most politically charged aspect of the law. Court watchers will be paying particularly close attention to questions and comments from Justice Antonin Scalia since he is (unexpectedly) one of the conservative justices who is most well positioned to uphold the law.

The key decision court watchers point to is Gonzales v. Raich. In this case, the court upheld Congress's ability to ban the growth of cannabis even in states that had legalized medical marijuana. For amateur and professional court watchers who want to have a refresher on just how much power Scalia thinks Congress has, here are some of the key parts of Scalia's ruling on the subject. Doug Mataconis provides the highlights:

The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

Pay close attention to anything Scalia might say about the mandate, particularly when the opponents of the law make their case on the basis that there is a difference between congress regulating "activity" as opposed to "inactivity".