Scalia Changes His Mind on Key Obamacare Precedent

<a href="http://www.flickr.com/photos/stephenmasker/4668514068/sizes/m/in/photostream/" target="_blank">Flickr/The Higgs Boson</a>


Justice Antonin Scalia has changed his mind about a key Supreme Court precedent that supporters of the Affordable Care Act have been using to argue that the law is constitutional. Scalia’s new position leaves little doubt that he’ll vote to overturn the law. 

As TPM’s Sahil Kapur notes, a New York Times review of Scalia’s new book describes the Justice arguing that the 1942 Supreme Case Wickard v. Filburn, which featured a broad interpretation of the Commerce Clause that has been key to pro-Obamacare legal arguments, was wrongly decided.

In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

[…]

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”

Yet Scalia cited Wickard in his 2005 concurrence in Gonzales v. Raich, holding that the Commerce Clause gave Congress the authority to prohibit individuals from growing their own marijuana for medical use. In the opinion, Scalia made an argument often cited by Obamacare supporters in defense of the law, stating that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” In other words, since Congress has the authority to regulate interstate commerce, and health insurance falls into this category, it has the power to implement the individual mandate. 

Conservatives were so fearful that the precedent set by Raich would prove insurmountable to their effort to kill Obamacare that Republican-appointed judges developed an argument that would allow the court to avoid overturning Raich, and allow Scalia to avoid contradicting his concurrence. That argument was the much touted “activity/inactivity” distinction, the idea that by taxing Americans who avoid purchasing health insurance Congress was trying to regulate commercial “inactivity” rather than activity. The argument makes little sense, both because the plaintiffs in Raich were not engaging in commercial activity and because health care is something all humans eventually require. But the reasoning nontheless seemed carefully tailored to allow the court to rule against Obamacare without engaging in a potentially embarrassing reversal of their prior rulings. Georgetown University law rofessor Randy Barnett, one of the most influential legal minds among Affordable Care Act opponents, predicted Scalia would adopt this rationale back in December 2010

Scalia’s explanation of his current views on Wickard shows that the lower court judges needn’t have bothered providing Scalia with an escape hatchInstead of wisdom “coming late” to Scalia, it may have arrived just in time to justify a vote to overturn the Affordable Care Act.

One More Thing

And it's a big one. Mother Jones is launching a new Corruption Project to do deep, time-intensive reporting on the corruption that is both the cause and result of the crisis in our democracy.

The more we thought about how Mother Jones can have the most impact right now, the more we realized that so many stories come down to corruption: People with wealth and power putting their interests first—and often getting away with it.

Our goal is to understand how we got here and how we might get out. We're aiming to create a reporting position dedicated to uncovering corruption, build a team, and let them investigate for a year—publishing our stories in a concerted window: a special issue of our magazine, video and podcast series, and a dedicated online portal so they don't get lost in the daily deluge of headlines and breaking news.

We want to go all in, and we've got seed funding to get started—but we're looking to raise $500,000 in donations this spring so we can go even bigger. You can read about why we think this project is what the moment demands and what we hope to accomplish—and if you like how it sounds, please help us go big with a tax-deductible donation today.

We Recommend

Latest

Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate