Is The Obama Admin Trying To Box In Scalia On The Health Care Mandate?

January 11, 2012 12:22 a.m.

On first blush, it seems like a no-brainer that Antonin Scalia will vote to overturn the health care reform law’s requirement that Americans buy insurance: the Reagan-appointed justice is a staunch conservative who’s beloved by Republicans; for what possible reason could he deliver such a devastating blow to his own side and boost President Obama?

The answer: judicial precedent. His own. And the Obama administration has noticed.

In its brief filed with the Supreme Court Friday, the Justice Department cited no fewer than 10 times the 2005 Gonzalez v. Raich case, in which Scalia (and Justice Anthony Kennedy) broke with the court’s conservative wing to hand down what scholars viewed as one of the broadest declarations of federal power under the Commerce Clause: a 6-3 ruling decreeing that Congress may ban a medical-marijuana patient from growing cannabis for personal use in California where it’s legal.Raich was bound to come up either way as it’s seen as the most relevant precedent to the Affordable Care Act case, but the Obama administration is deploying it to box in Scalia specifically and conservatives broadly. Five separate times in the brief, the DOJ noted Scalia’s concurrence in the case.

“It’s just to say look, you got this right last time, and you were right last time and you should do the same thing this time,” Tim Jost, professor of health law at Washington and Lee University, told TPM.

Although laws about marijuana and health insurance appear to be separate issues, from a judicial standpoint they drill down to the same core question: the extent of the federal government’s constitutional authority to regulate.

The DOJ drew the parallel:

[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.

And the jurisprudence in Raich is hardly seen as an outlier.

“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. Their argument goes 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.

Adam Serwer noted at the time that Scalia may well 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.

Correction: The original version of this article mistakenly said that Jost teaches at the University of Chicago. We regret the error.

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