Friday, February 04, 2011

Scalia as the savior of Obamacare…

I made this point in the comments section over at AoS awhile back and not many people agreed, but it’s possible.  The reasoning, as laid out by the author at the Huffington Post, is that Scalia has previously sided with a fairly broad definition of the commerce clause:

(H)is opinion in the 2005 case of Gonzales v. Raich has led to speculation that he could begrudgingly okay the underlying principles of the individual mandate -- the legally-contested provision at the heart of the bill.

In a separate concurrence to Raich's majority decision -- which held that Congress could criminalize the production of homegrown marijuana even in states that approved of its medical use -- Scalia made what is widely regarded as one of the Court's broadest interpretations of Congress' ability to regulate commerce. Not only did the legislative branch have the "power to regulate activities that have a substantial effect on interstate commerce," he wrote; it had the power to extend itself into "those measures necessary to make the interstate regulation effective."

At the time I had forgotten just how wide his interpretation of the commerce clause was, I just remembered that there had been a decision where he had disappointed a large number of people.  Interestingly enough Clarence Thomas’ dissent backs the HuffPo author’s assertion:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Obviously I don’t seriously expect Scalia to back the individual mandate, the original article gives a couple examples of how he could avoid it, but this does point out that the courts are always a crapshoot. 

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