Justice Antonin Scalia, the funniest, crankiest and all around third-most infuriatingly awful Justice on the Supreme Court (don't worry, Thomas, you're still number one to me) has indicated in his new book that he no longer agrees with the precedent on which the gummiment's arguments on Obamacare are based.
The case in question is Wickard v. Filburn, which expanded Congress' authority to regulate commerce to include powers that don't directly fall under the interstate purview of the Commerce Clause. In Wickard, the gummiment had ordered a farmer growing more than the allotted amount of wheat to destroy the excess crop, even though he was growing it for personal use, not for sale. The Supreme Court sided with the gummiment, arguing that the farmer's excess wheat meant he would buy less on the open market, which affected the national wheat industry, thus placing the action under the Commerce Clause.
"Even if appellee’s activity be local,” Justice Robert H. Jackson wrote in the decision, "and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."
In short, if Congress can regulate intrastate commerce is if it is a part and parcel with interstate commerce. Scalia has long sided with Wickard, so much so that he's explicitly cited the case as recently as 2005. "Where Congress has authority to enact a regulation of interstate commerce," he wrote in a concurring decision in Gonzalez v. Raich, "it possesses every power needed to make that regulation effective."
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You see where this is going. The Obama administration based much of its legal argument on this case, as Congress was seeking to regulate an individual's purchase of health insurance, which in most cases does not cross state lines. But the health industry is a national one, with national implications. Thus, the gummiment argued that under Wickard, it had the right to extend its powers to effectively regulate the interstate health industry by regulating individual, intrastate insurance purchases.
But when Scalia cited the decision in 2005, he was stopping someone from growing pot in her backyard, even when the practice was legal in her state. Scalia doesn't like pot, presumably because it convinces plebes to buy Noam Chomsky books online or something. Watchers of the Court know that Scalia has a very malleable judicial theory that really seems coincident with Things Scalia Likes. Congress, for instance, can't regulate guns, or violence against women, but it can regulate homosexual rights and pot. This version of Federalism is so pretzeled that some Court observors wondered, with fingers crossed, if Scalia might actually uphold Affordable Care Act simply to preserve the power to regulate things like gay rights and marijuana.
No such luck. Anybody with two ears who's ever heard Scalia speak, in the third person of course, knows he doesn't go in for things like national mandates of health care. And so, just at the doorstop of the Obamacare decision, Scalia has reversed himself and decided that he does not in fact agree with Wickard, despite the fact that he did agree with Wickard, like, ten minutes ago. Via Talking Points Memo:
In the preface of the book, Scalia, writing about himself in the third person, concedes 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" in the health care ruling, the Times reports. He notes that while precedent factored into some of them, in other cases it’s "because wisdom has come late."
Late? Sounds like wisdom came just in time for Scalia, and a little early for the 30 million people who were going to get health care under the Affordable Care Act.
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