Antonin Scalia's Complicated History with the Commerce Clause

National Review’s Robert Verbruggen has a short article speculating on how Justice Antonin Scalia might vote when one of the legal challenges to the Patient Protection and Affordable Care Act finally reaches the Supreme Court. His main focus is Scalia’s unfortunate concurring opinion in Gonzales v. Raich (2005), where Scalia held that Congress could rightfully use its authority to “regulate commerce...among the several states” to reach the wholly intrastate cultivation and consumption of medical marijuana. As Verbruggen observes, this view “was primarily based not on the Constitution itself, but on the Supreme Court’s ever-loosening interpretation of it.”

Since ObamaCare’s individual mandate relies on a similar interpretation of the Commerce Clause, Verbruggen worries that Scalia might vote to uphold the law. It’s a genuine concern, no doubt about that, but I’m surprised Verbruggen failed to mention Scalia’s noteworthy dissenting vote last month when the Court declined to take up the case of Alderman v. United States. At issue in Alderman was whether the Commerce Clause allows Congress to forbid violent felons from buying, owning, or possessing body armor. Justice Clarence Thomas believes that the clause provides no such power and wrote a strong dissent where he argued that by failing to take up the case, the High Court permitted a lower court ruling whose “logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.” Scalia joined Thomas in that dissent while the other seven justices kept their votes to themselves. So Scalia sent a pretty clear message that he still believes the Commerce Clause imposes some limits on what Congress can do. Anybody following the legal case against ObamaCare needs to take this vote into account.

For more analysis of how the justices might vote on the individual mandate, see here and here.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • sarcasmic||

    Conservatives are always willing to sacrifice principles when it comes to their version of morality.

    For example drugs are bad. They're bad because they're bad. It is the moral duty of the government to protect people from drugs because drugs are bad.

    Conservatives will say that in principle Congress has no business regulating intrastate commerce, but an exception must be made regarding marijuana because it's a drug and drugs are bad.

  • ||

    Yeppers. The conservative statist is still a statist.

  • Bill||

    Yes, it's almost like Scalia bases some of his legal opinions on his own personal opinions rather than the law.

    Ironic, (slimy?) given that he is supposed to be an original intent kind of guy.

  • Really?||

    Conservatives are always willing to sacrifice principles when it comes to their version of morality.

    Yes. And that is why Scalia's history with the Commerce Clause is not "complicated".

    Unprincipled? Yes.
    Intellectually dishonest? Sure.

    But not complicated.

  • ||

  • Mr. FIFY||

    True, but never excuse statist liberal drug-warrior trash like Rangel.

  • ||

    My bet is that SCOTUS will reject the mandate. But they won't trash the whole thing. 1) They don't have intellectual integrity (I would say they don't have the balls, but that would just invite Sugarfree Snark®) Only through that tortuous process called legal reasoning, they will find a severability clause.

  • MJ||

    More importantly, the justices who do have the intellectual integrity to trash the whole thing may not be able to convince, say, Kennedy to go along with that course of action.

  • Jeffersonian||

    Scalia will do the right thing here, even if it is for the wrong reason.

  • Barely Suppressed Rage||

    Tell that to the defendant in Gonzales v. Raich.

  • ||

    The defendant in that case was the Attorney General of the United States (see http://scholar.google.com/scho.....as_sdt=2,9). (Ashcroft was originally the defendant, but Gonzales replaced him when the case was on appeal to the Supreme Court.)

  • ||

    Agreed. Scalia is basically Rush Limbaugh in a black robe. Not that I'm putting down Limbaugh, just pointing out that he's not objective.

  • BakedPenguin||

    Nope - he thinks drugs are bad, too - now that it's been proven to him that he can't handle them.

  • ||

    Caption contest for alt text: "Some people believe that the government must be, Quote, 'limited.'"

  • Achtung Baby||

    "I say that these people are, quote, 'pussies.'"

  • Sovereign Immunity||

    "I tell ya, it is this big! I showed Bachman at the Constitution shindig!" (chuckes)

  • ||

    "There are two Constitutional exits in the front and the rear."

  • ||

    "There are two Constitutional exits in the front and the rear."

  • ||

    If you say it twice then there would be four of them.

  • Colonel_Angus||

    "Are you threatening me?"

  • ||

    "So I'm fingerblasting Ruth and Sarah at the same time and Clarence walks in. He's all like 'Why'd you have to do on my desk, Tony?' and I'm like 'Remember when I made that sandwich for you last week? Smell my finger, Clarence! Ham's not supposed to taste like Ben-Gay!' and he was all like 'Gross, dude!" and I was all like 'ROTFLOL!'

    Anyway, back to my commencement speech..."

  • ||

    Thanks for the visual.

  • ||

    Ben-Gay is passe, you clod. IcyHot is the new methyl salicylate.

  • ||

    "Go fuck yourself" is the new "Episiarch."

  • ||

    Incorrect, again. "Go give yourself an anal prolapse" would be more correct.

  • ||

    I really wish people would stop bringing up Raich. That case was unique - it fell into the "drugs are bad, mkay" exception of SCOTUS jurisprudence. Long story short, anything the government wants to do to stop kids from smoking the marijuana is acceptable. The mandate isn't in the drug exception, so it will likely get struck down.

  • ||

    Maybe, but the danger is that Scalia will feel compelled to come up with a decision that is consistent with Raich and will be hard pressed to do so without upholding some or all of ObamaCare.

  • ||

    I've heard a few people argue (unconvincingly, in my opinion) that Scalia's concurrence in Raich was actually principled and consistent with other opinions he's reached. Personally, I think it was an example of how he's willing to sell out his originalist principles in the name of the War on teh Drugz. I'm actually looking forward to the Supreme Court tackling the individual mandate precisely because it will give us a clear answer to that debate.

  • Number 2||

    Bear in mind that the issue in Raich is different from Obamacare. Raich may have involved intra-state commerce, but it was commerce nonetheless. Obamacare involves the forced participation in commerce that one would otherwise not have participated in. Scalia can easily strike down the individual mandate without even having to address or distinguish Raich.

  • Mo||

    How is growing something for personal use commerce?

  • Number 2||

    Because it adds to the supply of the product, similar to the wheat in Wickard v. Filburn.

    NOTE: I am not endorsing this logic, but simply quoting to you what the case law currently says. And my point is that any justice can vote against the individual mandate without needing to address or overrule this existing case law.

  • Number 2||

    Of course, they should overrule this existing case law as an over-reach of the common sense definition of interstate commerce. And Stevens very skillfully used the War on Drugs as a means of breathing life back into Wickard, which even liberal law professors had assumed was the furthest the commerce clause would ever go. But overruling these cases would be a true home run. It is more likely the court will strike the mandate and leave Wickard/Raich alone.

  • ||

    Scalia relied on the Necessary and Proper clause to uphold Raich. As such, he never argued that growing pot for personal consumption is interstate commerce. He argued that eradicating Schedule I drugs from interstate commerce is rightfully the domain of the federal government, and that prohibiting the growing of marijuana for personal consumption was necessary to achieve the proper federal goal of eradicating Schedule I drugs from interstate commerce.

  • ||

    Which is of course nuts, because marijuana grown in your back yard and consumed by you to treat your nausea does not hinder in the least way the feds' effort to "eradicat[e] Schedule I drugs from interstate commerce." If anything, it means that you aren't entering the interstate market to buy drugs, which actually furthers the goals of the federal war on drugs.

  • ||

    Yeah, but that's logic and common sense, and neither apply when it comes to the War on Drugs.

  • robc||

    Raich didnt even involve intra-state commerce. It involved growing for personal use. No commerce of any kind.

  • Barely Suppressed Rage||

    Raich may have involved intra-state commerce, but it was commerce nonetheless.

    What commerce? The lady had a couple pot plants growing in her kitchen or something, for her own use in her own house. Where's the commerce? I suppose she had to buy the seeds from someone.

  • MNG||

    One difference might be that the logic in Raich is strange. In Wickard the government could say that by growing his own wheat he was not participating in the market for wheat and it was participation in that market the government was trying to encourage. In Raich the woman growing her own pot is not participating in a market that the government wanted to discourage!

  • ||

    Okay, so I just re-read Scalia's concurrence in Raich for the first time in a long time and actually his analysis there would support the individual mandate. He recognizes that growing pot for personal use is neither interstate nor commerce, but allows it under the Necessary and Proper clause: "[A]s this Court has acknowledged since at least United States v. Coombs . . . Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause." Accordingly, he could argue that if 1.) the insurance industry is interstate commerce and thus properly subject to federal regulation, and 2.) the individual mandate is necessary to regulate the insurance industry, then 3.) Congress can do it even though it's not interstate commerce itself. If you follow that logic, then the fact that it's not commerce is immaterial.

  • ||

    I'll also note that he has an out: the distinction between regulating activity and regulating inactivity. But I don't see that as a distinction relevant to the necessary and proper clause, and thus I would argue that striking down the mandate would be inconsistent with his holding in Raich.

  • Barely Suppressed Rage||

    I can see a difference in Raich versus the individual mandate is that in Raich, the defendant actually was engaging in an activity - growing pot - that was regulated by the federal government.

    So in Raich, the person was engaging in an activity the government said you can't engage in. The individual mandate seeks to impose a fine for NOT engaging in an activity that the government wants you to engage in.

  • ||

    From Scalia's concurrence in Raich:

    Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.”
  • Mo||

    There's a drug exception in the Constitution? I must have missed that part in my civics class.

  • Barely Suppressed Rage||

    Did you also miss the part about Art. I, Sec. 8, which sets forth the specific, enumerated and limited powers of Congress?

  • Mo||

    Huh? I think we're on the same side here. I don't support the mandate or the ruling in Raich.

  • Ezra Klein||

    Well, the commerce clause is really hard to understand - it was written like 100 years go. LOL!

  • ||

    Never gets old.

  • ||

    Unlike that dusty ole constitution.

  • Dr. Lionel Hutz-Riviera||

    Did you go to Hollywood Upstairs College of Law too?

  • ||

    I predict the whole thing gets struck down, 5-4, but that there might be some fuzziness on why it's getting struck down.

    I believe even the government has said that the rest of the law is a house of cards without the mandate, so there's no strong reason for going through the legal yoga to come up with some bullshit excuse for retaining the rest of the law.

  • Old Mexican||

    Antonin Scalia's Complicated History with the Commerce Clause


    That's a very polite way of saying he's an unprincipled hypocrite.

  • MJ||

    It is a polite way of saying that one of the things Scalia considers a principle, i.e. don't radically go against precedents, is not considered much of a principle around here (for good reason).

  • ||

    The question is: will the Obama admin even appeal the case to the SCOTUS or will they continue to implement all of Obamacare and ignore a court order?

    I doubt they even appeal. I imagine they will use the little-known "deemed to have appealed" clause imposed by executive order sometime in late December. Then they will use the even-lesser-known "deemed to have won on appeal" clause that exists in their minds.

  • ||

    Failing that, they will make it voluntary for the states. Oh, and by "voluntary," they mean if you do not impose all parts of Obamacare, all federal highway, education and public works money will be pulled. Yeah, that kind of "voluntary."

  • West Coaster||

    Well, at least at that point the states would be able to do some simple accounting calcs: If amount needing to be spent on OC > amount recieved from Feds, then don't implement OC.

  • ||

    It'll never happen, of course, but that approach would begin to build a consituency for ending all transfer payments to the states.

    As more states drop out of the transfer programs, their representatives have an incentive to kill the programs altogether.

  • Monty||

    Why couldn’t the states withhold any money going to the feds? I don’t think any state has the guts to do that. Why wouldn’t it work?

  • ||

    As Verbruggen observes, this view “was primarily based not on the Constitution itself, but on the Supreme Court’s ever-loosening interpretation of it.”

    Or, it could have been Scalia working backwards from his desired outcome to dress it up in something which "looked like" legal reasoning.

  • ||

    See, the thing is, drugs are bad. And Obamacare is bad. so, the living, breathing Constitution is such a wonderful document that it allows for what may, on the surface, seem as inconsistent positions, but in fact were fully intended by the framers. or something like that.

  • Framer||

    What is this "health care" to which you refer?

  • ||

    He'll get the result he wants, and when his hypocrisy is pointed out, he'll just say "deal with it".

  • ||

    I've got a foreboding feeling about this. I do believe that it will come down to Justice Kennedy and that he'll uphold ObamaCare. That decision will be promoted by Dems as "See, it is a good law!", when, in fact, the SCOTUS says nothing about whether a law is good or bad, just whether it's Constitutional.

  • MNG||

    Usually when something comes and it concerns Kennedy, though he cannot justify exactly why under precedent it should trouble him, he will find some murky way to kill it. That's what he does. And even defenders of Obamacare must admit that it is going into unchartered grounds and could open up an entirely new area of unthought of government action, just the kind of thing that makes Kennedy uneasy.

  • ||

    I hope you're right about that.

  • MNG||

    "Conservatives are always willing to sacrifice principles when it comes to their version of morality.

    For example drugs are bad. They're bad because they're bad. It is the moral duty of the government to protect people from drugs because drugs are bad."

    This is spot on. If you read cases involving drugs or terrorism or really just the military/national security stuff the conservatives fall over themselves talking about "well this is obviously a dire, dire threat and there is a super-compelling interest that goes without saying here..."

    But I have to wonder: are libertarians immune to this considering that you could say their morality blends with their principles just like conservatives (and liberals). It's just that fall into the "things that are horrible and deserve government coercion to stop" category would be different and likely smaller for the libertarian than the other two.

  • Old Mexican||

    Re: MNG,

    are libertarians immune to this [bending of principles] considering that you could say their morality blends with their principles just like conservatives (and liberals).


    Depends - are you talking about Beltway pseudo-libertarians, or libertarians?

    It's just that fall into the "things that are horrible and deserve government coercion to stop" category would be different and likely smaller for the libertarian than the other two.


    "Coercion" implies initiation of force, aggression. No thing warrants that.

  • MNG||

    Coercion doesn't imply that, you do because it suits your view to define it that way. For the world outside your head coercion is defined thusly:

    the act of compelling by force of authority
    wordnetweb.princeton.edu/perl/webwn

  • Old Mexican||

    Re: MNG,

    Coercion doesn't imply that,


    Of course it does, MNG. It comes from Latin coercere: To Hold, To Restrain.

    you do because it suits your view to define it that way.


    You should take your Thorazine, MNG. I don't define words in a way it suits me, I USE the proper words that define the CONCEPTS.

    verb (used with object), -erced, -erc·ing.
    1. to compel by force, intimidation, or authority, especially without regard for individual desire or volition

    Even dictionaries agree with ME, not with YOU. And English is not even my first language...

  • sarcasmic||

    What happens if you defy that authority?

    Especially if we're talking about government authority?

    Well, what will happen is that nice men with guns will come and invite you to court. If you object then they will respond with violence. If you react to their initiation of force with force there is a chance that you will be killed.

    The act of compelling by force of authority implies a threat of violence.

  • ||

    ---"Coercion doesn't imply that, you do because it suits your view to define it that way. For the world outside your head coercion is defined thusly

    the act of compelling by force of authority
    wordnetweb.princeton.edu/perl/webwn"---

    coercion–noun
    1. the act of coercing; use of force or intimidation to obtain compliance.
    2. force or the power to use force in gaining compliance, as by a government or police force.

    So which definition, yours OR mine, doesn't involve the use of force?

  • ||

    But I have to wonder: are libertarians immune to this considering that you could say their morality blends with their principles just like conservatives (and liberals). It's just that fall into the "things that are horrible and deserve government coercion to stop" category would be different and likely smaller for the libertarian than the other two.

    Engrish prz

  • MNG||

    I guess I'm saying one's principles are informed by one's morality. Libertarians think it is horribly wrong to violate property rights and would allow the government to intervene with vigour to protect them, conservatives think it is horribly wrong to allow porn or drugs to be disseminated and would allow the government to intervene with vigour, liberals think it is horribly wrong that people don't have insurance, and would allow the government to respond with vigour.

  • ||

    Well you're example is shit.

    Conservative throw people in jail, endorse no-knock raids, etc because of drugs.

    Liberals force people to purchase health insurance, force them to maintain a level of coverage set by the government.

    Libertarians leave people alone on their property.

    One of these is not like the other.

  • ||

    your not you're god that looks dumb.

  • ||

    Punctuation doesn't need to be rationed.

  • MNG||

    Libertarians wouldn't throw people in jail for trespassing and stealing? News to me.

  • Old Mexican||

    Re: MNG,

    Libertarians wouldn't throw people in jail for trespassing and stealing? News to me.


    We don't need no stinkin' jails when we have the help of my good and close friends: Winchester and Ruger.

  • ||

    Oh I misunderstood.

    Your example still sucks though. Trespassing and theft are well defined actions which constitute a crime in any jurisdiction I'm aware of. Inhaling a verboten smoke or refusing to buy the products of a certain company is much more, shall we say, novel and interesting legal reasoning.

  • ||

    MNG, after all these years, still can't figure out the difference between leaving people alone and telling them what is moral.

  • The Ingenious Hidalgo||

    Trespassing and stealing are initiations of force. Throwing people in jail for taking drugs is an initiation of force. Libertarians are opposed to both for the same reasons. This does not mean we compromise on our principles: in fact it means the opposite.

  • Old Mexican||

    Re: MNG,

    I guess I'm saying one's principles are informed by one's morality. Libertarians think it is horribly wrong to violate property rights[...]


    It's not a thought - it is WRONG to violate property rights, it's bad in itself. We're off to a bad start, MNG, if you think property rights are contingent to someone's opinion.

    [...]and would allow the government to intervene with vigour to protect them,


    Well, that depends again if we're talking about Beltway pseudo-libertarians or libertarians - I would not allow the government anything, I would simply present the transgressor with my two good and close friends: Smith, and Wesson.

    [...]conservatives think it is horribly wrong to allow porn or drugs to be disseminated and would allow the government to intervene with vigour, liberals think it is horribly wrong that people don't have insurance, and would allow the government to respond with vigour.


    There are ethical differences between liberals, conservatives and libertarians, in that conservatives and liberals will use political means (i.e. thievery and assault) to achieve ends, whereas libertarians apply the productive means (voluntarysm, free markets), or Ethics of Liberty. I would certainly NOT allow a government do anything as I would not create a government nor help in the creation of one.

  • MNG||

    "it is WRONG to violate property rights, it's bad in itself"

    And this view has nothing to do with morality? Can't wait to see this argument...

  • Old Mexican||

    Re: MNG,

    And this view has nothing to do with morality? Can't wait to see this argument


    Don't be sneaky, I am 2 steps ahead of you:

    "Libertarians think it is horribly wrong to violate property rights"

    Moral views are not simple opinions. You may want to imply that, but they stem from rational conclusions. Also, you're decidedly confusing MORALITY with CULTURE or TABOOS. Big no-no.

  • sarcasmic||

    You forget that some consider property to be theft.

    If you claim something as your property after working hard to produce something of value to trade for it, then I can't use it.

    Even though I have created no value, I deserve to be able to use your property. It's only fair.

    By your not allowing me to drive your car, eat your food, sleep in your bed and fuck your wife, you have initiated force upon me.

    It is the duty of the government to, in the interest of fairness, force you to give me equal use of your property.

    Anything else is theft.

    .
    .
    .

    IMHO people who "think" like that should be shot, but that's just my opinion.

  • ||

    I guess I'm saying one's principles are informed by one's morality

    What else would they be formed by?

  • MNG||

    "Conservatives are always willing to sacrifice principles when it comes to their version of morality."

    You're asking the wrong guy, I agree with you. Take it up with this guy.

  • ||

    It's badly phrased, I'll admit. It's more that their professed principles and morality are asynchronous. Which I agree with. Their actual principles are perfectly aligned with their anti-freedom morality.

  • Brett L||

    Money. Establishing a race of knife-wielding super monkeys. But morals seems like a better choice.

  • ||

    Libertarians think it is horribly wrong to violate property rights and would allow the government to intervene with vigour to protect them

    *consults Magic 8-Ball*

    I foresee the "conversation" spiraling rapidly out of control.

  • ||

    There was one?

  • ||

    Libertarians wouldn't throw people in jail for trespassing and stealing? News to me.

    And of course, we have the presumptive assumption of "the war of all against all".

    Last evening, some friend-of-a-friend liberal hipster doofus started spouting off about the dire consequences of snowstorms in large cities and the immediate consequential breakdown of society: anarchy, cannibalism, looting, rape, pillage. He sounded exactly like the news reporters breathlessly reporting dozens of murders and child-rapes during Katrina.

    What a maroon.

  • ||

    You wouldn't believe the breakdown of society we experienced here in Chicago: folks with snowblowers clearing everybody else's sidewalks; young people helping the elderly dig out their cars; private plows clearing alleyways since it would be a week before the city got to it. I still have nightmares...

  • Brett L||

    This is just the sort of ungoverned social cohesion that undermines the very fabric of the social controllers' Hobbesian state of nature. It must be prohibited immediately.

  • sarcasmic||

    You mean people were voluntarily helping one another?

    I thought that nobody helped anyone do anything, and that was what government is for.

    You've got to be lying.

    I don't believe you.

    Liar.

  • Vermont Gun Owner||

    Just thinking about those poor public union workers who won't get to clear the streets now is going to keep from sleeping all night.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement