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.