Monday, April 16, 2012

why scalia could uphold obamacare

The Atlantic | Most non-lawyers have been bemused by the confidence that constitutional lawyers once had about the Supreme Court's likely decision in the Patient Protection and Affordable Care Act (aka, the Obamacare) case. The idea that this Republican Court would not give the Republicans their victory seemed silly to most, or at least naive. What possible reason would there be to imagine the Court would hold its punches?

But indeed, there was a confidence, at least among those whose career is focused upon the intricacies of commerce clause jurisprudence, that the Court would uphold the statute. When I read that my colleague Charles Fried -- Ronald Reagan's solicitor general -- said that he would eat his hat if the Court struck the statute, I didn't think Fried was being brave or reckless: the point seemed too obvious to remark. Whether wise or not, Obamacare is plainly constitutional under the Court's existing precedents. That's not to say the Court couldn't make up a new rule by which the law was deemed unconstitutional. But against the history of the repeated embarrassments that the Court has suffered as it has tried to police Congress' commerce authority, it seemed genuinely unimaginable that it would again make the same mistake.

The simplest way to see this point is to focus on the jurisprudence of a key vote in any hypothetical 5-4 decision to strike the law -- Justice Antonin Scalia.

Scalia's commerce clause jurisprudence is among the most careful, and, in my view, precise among the justices likely to impose a constitutional limit on Congress' authority. His concurring opinion in Gonzales v. Raich, a case about whether Congress had the power to regulate home-grown marijuana, maps a very clear formula for testing Congress's authority. If you apply that test to Obamacare -- especially in light of the evidence just published by my colleague Einer Elhauge -- there can be little doubt about the answer.

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