Antonin Scalia

Antonin Scalia's ObamaCare Problem

The Obama administration repeatedly cites the conservative Supreme Court justice in defense of its health care overhaul.


When the U.S. Supreme Court hears oral arguments later this month on whether the Patient Protection and Affordable Care Act's individual mandate, which requires all Americans to buy or secure health insurance, oversteps Congress' lawful authority to regulate interstate commerce, the Obama administration will be drawing heavily from the legal arguments of a surprising ally: conservative Justice Antonin Scalia.

That's because in 2005, when the Supreme Court last heard a major Commerce Clause challenge to a federal regulation, Scalia sided with the liberal majority and wrote a sweeping opinion in favor of federal power. In that case, Gonzales v. Raich, the Court held that the cultivation and consumption of medical marijuana entirely within the confines of the state of California still qualified as "commerce…among the several states" because this intrastate use of medical pot "substantially affects" the interstate black market in the drug.

Justice Clarence Thomas found the majority's reasoning specious, and famously stormed in dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

But Justice Scalia wasn't so worried about limiting the government's reach. Congress "may regulate even noneconomic local activity," Scalia wrote in his concurring opinion, "if that regulation is a necessary part of a more general regulation of interstate commerce." Scalia also distinguished his vote in Raich from two recent decisions where the Supreme Court had endorsed a more limited scope for the Commerce Clause. In the first of those cases, United States v. Lopez (1995), the Court struck down the Gun Free School Zones Act because possessing a gun within 1,000 feet of a school was not an economic activity and therefore not open to regulation by Congress via the Commerce Clause. Then, in United States v. Morrison (2000), the Court extended this line of reasoning to void the Violence Against Women Act, which had relied on the Commerce Clause to impose federal criminal penalties for gender-based violence.

Since Scalia had voted with the majority in both Lopez and Morrison, many Court-watchers expected him to be equally skeptical of Congress' power to regulate the local use of medical marijuana. But when it came time to decide Raich, Scalia broke with Thomas and the other conservatives and instead argued that the two limiting precedents did not apply. "Neither [Lopez nor Morrison] involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation," he argued.

Scalia even reaffirmed the Supreme Court's controversial 1942 ruling in Wickard v. Filburn, which had allowed Congress, as part of its power to regulate interstate commerce, to forbid an Ohio farmer from planting twice the amount of wheat permitted under the Agricultural Adjustment Act even though that extra wheat was going to be consumed entirely on the man's own farm. In Scalia's view, even that degree of local activity was reachable via the Commerce Clause. "The potential disruption of Congress's interstate regulation," he wrote of Wickard, "and not only the effect that personal consumption of wheat had on interstate commerce, justified Congress's regulation."

All of these arguments by Scalia appear in the legal brief the Obama administration recently submitted to the Supreme Court in defense of the Patient Protection and Affordable Care Act. In fact, Scalia's reasoning is cited extensively in order to bolster the government's claim that the individual mandate is a perfectly legitimate exercise of congressional power. But will the government's play for Scalia's vote pay off?

There's reason to think that it won't. In January 2011, as the legal challenge to the individual mandate was heating up, the Supreme Court declined to take up a case known as Alderman v. United States. At issue there was whether Congress could forbid violent felons from buying, owning, or possessing body armor under its Commerce Clause power. Justice Thomas dissented from this decision, arguing that by failing to take up the case, "the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence," including U.S. v. Lopez. What's notable is that Scalia signed on to Thomas' dissent, suggesting that despite his vote in Raich, Scalia would still like to see some limits imposed on congressional power.

The libertarian and conservative lawyers who crafted the legal challenge to the health care act are counting on Scalia to maintain this recent skepticism towards federal authority. As Georgetown University law professor Randy Barnett argued in the December 2009 Heritage Foundation paper that essentially launched the case against the individual mandate four months before the president signed the health care act into law, "There is every reason to believe that five Justices of the Supreme Court will be open, and perhaps even eager, to reaffirm the principles of Lopez and Morrison in a case [not involving] marijuana."

Barnett and the other legal challengers argue that while Wickard and Raich greatly expanded Congress' power to regulate economic activity, neither precedent stretched the Commerce Clause so far as to allow the regulation of inactivity—such as the non-act of not buying health insurance. If Scalia accepts this crucial distinction between the permissible regulation of economic activity and the impermissible regulation of inactivity, he won't have to renounce his vote in Raich in order to find the individual mandate to be unconstitutional. If he accepts the government's argument that Raich is broad enough to allow Congress to force every American to buy health insurance from a private company, the individual mandate will almost certainly survive.

In other words, when the ObamaCare oral arguments kick off later this the month, keep a close watch on Scalia.

Damon W. Root is a senior editor at Reason magazine.

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  1. “What? Do I look sorry to you?”

    1. ? Universal pollution is good.
      ? Universal birth defects are good.
      ? Universal cancer is good.
      ? Universal asthma is good.
      ? Universal health care is bad.

      Cuz personal responsibility doesn’t extend to the poisons I put in the air to make money.

      KOCHsuck my tailpipe, biatches!

          1. …sides with the libs.

            1. I do that because liberals are dead set on making us poor, cold, naked and squat in caves.

            2. Fibertard told me so.

              1. …to libs and prims equals stealing from others to pay for health care.

                Funny. Every. Fucking. Day.

                1. It’s a personal responsibility to right a wrong you caused.

                  But Fibertard weasels about personal responsibility when it is his personal responsibility.

                  Funny. Every. Fucking. Day.

      1. …equals civilizational construct.

        Primitard claims to hate civilization, except the parts he loves.

        Primitard fibs. Go figure.

        1. You pollute and harm other people; you pay.

          Or do you want to avoid personal responsibility for causing harm, Fibertard?

          Thesis #21: Civilization makes us sick.

          1. …equals personal responsibility?


          2. Universal health care is a personal responsibility.

            In other words, civilization for me, but not for thee.

          3. …that he’s an aggressive socialist.

            Do as I say, not as I do.

            1. …Agricultural city-Statist political schemes.

              Both mass society organizational schemes fail because both ignore that humans are evolutionarily adapted to small scale band life, within human neurological limits, i.e., “Neocortex size as a constraint on group size in primates.” a.k.a. Dunbar’s Number.

              Against Mass Society
              from Green Anarchy #6

              Dunbar, R.I.M. (June 1992). “Neocortex size as a constraint on group size in primates”. Journal of Human Evolution 22 (6): 469?493. doi:10.1016/0047-2484(92)90081-J.

              So you’re still an aggressive agricultural city-Statist, Fibertard.

              1. Too difficult for Primitards.

                1. A freshman anthropology course pretty much invalidates the premises upon which you base your utopianism.

                  1. “…check your premises!”

                    Who knew the Fat Indian harbored a secret lust for Ms. Rosenbaum.

      2. STFU Rather. No one cares.

      3. Seriously, you made your freaking point. You have every right to post here but it’s the same crap over and over and over. Just out of common decency, can you chill out? I swear, I barely ever comment but got so sick of the same sh** over and over. We’re hypocrites, we’re Koch Stooges, we should oppose the Gambol Lockdown – Got it. I’m pretty sure everyone else here got it too – even the lurkers. Can we move on?

        1. Gummit! Unions! Zoning! Roads!
          Gummit! Unions! Zoning! Roads!
          Gummit! Unions! Zoning! Roads!
          Gummit! Unions! Zoning! Roads!
          Gummit! Unions! Zoning! Roads!
          Gummit! Unions! Zoning! Roads!

          Am I repeating myself?


          1. Nobody’s listening anyway. Well, nobody above 0.26% of the voters.

            1. …listen to Primitards. Poor Jason Godesky.

      4. ? Universal pollution is good.
        ? Universal birth defects are good.
        ? Universal cancer is good.
        ? Universal asthma is good.
        ? Universal health care is bad.”

        Your rambling about things like “universal asthma/cancer” makes you sound like one of those science-hating Newage nutjobs who thinks everything is caused by phantom toxins, which would make you a prime example of why most people don’t want Left Wing politics anywhere near their health or wellbeing.

  2. It depends…

    What is Scalia’s emotional attitude towards government control of health care?

    If he likes it, then he’ll rationalize his way into saying it’s constitutional.

    If he doesn’t like it, he’ll rationalize his way into saying it isn’t without contradicting the corpus of rationalizations that support/prohibit the stuff he likes/doesn’t like.

    Because that’s how Scalia rolls.

    1. This is true, as the article aptly demonstrates.

      1. Yep. The big pro-gov’t decision was made in 2005. Now, he suddenly doesn’t seem to like the federal gov’t so much. I wonder what happened between 2005 and now…

    2. ^^^ THIS

      He is an awful justice. But so are they all with the exception of a supposedly token black man appointment who happens to be the smartest and most consistent of all of them.

      1. You can say that again!

    3. ^^^ THIS

      He is an awful justice. But so are they all with the exception of a supposedly token black man appointment who happens to be the smartest and most consistent of all of them.

      1. And Thomas is pretty awful in certain areas too. But at least he is pretty consistent.

    4. This entire article should be replaced with tarran’s quote.

    5. Which begs the big question. When they decide to strip us of our 1st amendment rights this summer. If it is 5/4, Do you have to still shoot all 9?
      Equal treatment says yes.
      I will defend my 1st amendment with my second, if all 680+ have to pay for it equally, I am OK with that.
      Still waiting for 2+ years for the list of succession to the presidency for at least 1000 places. Going to be bloody taking back the country from this many dictators. Damn reps are worthless.

  3. What I don’t get is why the SCOTUS believes “the power to regulate interstate commerce” means Congress can do whatever it wants with interstate commerce. Somehow I don’t think the Framers had that in mind.

    1. That, and I also don’t get how it is that some people can argue with a straight face that the Supreme Court is this great noble defender of our liberties.

      When I hear that, I start to feel as though I’m occupying some kind of parallel alternate universe or something.

      1. I think, relative to the Legislative and Executive branches, the SCOTUS is the closest to maintaining at least a veneer of limited government. Sadly, libertarians like myself are lifting the veil and recognizing just how twisted the Supremes can be.

  4. Who is John Galt?

    1. A genocidal fuck?

      “Atlas these days reads almost like a Peak Oil survivalist fantasy. Rand apparently accepted a form of Malthusianism which held that we have too many philosophically undesirable people in the world. Just withdraw the energy supplies (Galt’s motor, Ellis Wyatt’s shale oil, Ken Dannager’s coal) that sustain them, and the resulting die off will restore Earth to its Objectivist carrying capacity.”

      ~Mark Plus
      10/12/2007 04:56:00 PM

      1. …Rand said, you believe everything she said.

        Primitard told me so.

        1. …”magnus opus.”

          Nice try, Fibertard.

          1. Does magnus opus translate to only work?

            Oh, you’re the one lying. Gotcha. Like I’m the dickhead.

            1. Sounds like a band you should join.

              1. Another reply unrelated to the discussion. Shocker.

          2. …contains seven billion aggressors.

            He believes aggressors should die.

            Therefore he loves Malthus.

            1. They say ok.

              The fuck?

              1. …there are seven billion aggressors?

                Oh, wait, that’s just YOU.

                1. “[The Native Americans] didn’t have any rights to the land … Any white person who brought the element of civilization [city-STATISM] had the RIGHT TO TAKE over this continent.”

                  ~Ayn Rand, US Military Academy at West Point, March 6, 1974

                  ? Is “THE RIGHT TO TAKE” a negative or positive right?
                  ? Is any white person‘s right individual or collective?

          3. …Rand said, you believe everything she said.

            Primitard told me so.

            1. Just don’t play Mozart.

              Or enjoy a good Impressionist painting.

              1. …on even one subject makes one an Objectitard?


                Primitards. Funny. Every. Fucking. Day.

                1. Where do you get so much straw?

        2. Before promoting a lifestyle that would cause and require….many, many people to die.

          1. Objection #5. Primitivists are genocidal maniacs whose planned “utopia” requires them to orchestrate the mass murder of 99% of the human population!

            I’ve saved the best for last. This is the single most common, and the single most powerful attack launched against primitivists by the progressivist camp…

            …ultimately, genocide on such a scale would be nigh impossible, and though die-off is guaranteed, it is almost as guaranteed not to come by way of genocide.

            Rather, collapse is more likely to occur as it always has. The diminishing returns of complexity lead to the breakdown of civilization…

            Five Common Objections to Primitivism, and Why They’re Wrong
            Jason Godesky

            We’re just sitting and waiting for your repeated and inevitable epic fail, city-Statist.

            1. Civilization will inevitably collapse.

              Primitards claim mystical fortune-telling powers.


            2. Bahhahaha… The inevitable collapse of humanity will be the glorious return to the primitive land of your dreams? No wonder you’re so tired.

              1. Not mystical, Fibertard. City-Statism’s repeated Collapse is well-documented with scholarly sources. Know what those are?

                ? Thesis #14: Complexity is subject to diminishing returns.
                ? Thesis #15: We have passed the point of diminishing returns.
                ? Thesis #19: Complexity ensures collapse.
                ? Thesis #26: Collapse is inevitable.

                1. …yet again! Gee I wonder what dual undergrad major Jason Godesky thinks about this topic? If only he’d drop by by now and again to participate in the discussion.


                  1. Gee I wonder what Fibertard thinks about this topic? If only he’d drop by by now and again to participate in the discussion. make 2nd grade taunts.


                    1. ….yet again! 2nd grade taunts are at your level! Aren’t you supposed to be DieOff(ing) or something?

                      Yo Jason! Fght the power…the power of GAMBOL LOCKDOWN!

                2. …Indian.

                  Oh Jason! Society is going to collapse without you ever knowing the pleasure of a woman.

                  Maybe she will poop on you!

      2. I always wanted to posit an obscure quote from someone who know one GIVES A FUCKING SHIT ABOUT and call it a rational argument. thank’s ECC!!! You made my day!!!

        1. WHO IS JOHN GALT?

      3. We have too many undesirable philosophers in the world.

      4. “A genocidal fuck?”

        He said “John Galt”, not “Karl Marx”.

  5. Kill it. Kill. It.

    1. It’s already alive…we would have to abort it!!!! Come on….you know our big R friends won’t do that

  6. Congress “may regulate even noneconomic local activity,” Scalia wrote in his concurring opinion, “if that regulation is a necessary part of a more general regulation of interstate commerce.”


    1. To be honest, I’m still trying to understand that myself.

      1. translation:

        the Federales can do whatever the fuck they want, as long as I’m emotionally OK with it.

        1. “CrackertyAssCracker” hahahahahahah I love it!!!!

    2. He twists himself into a pretzel in order to defend the drug war. That’s the main thing about Scalia.

    3. That goes all the way back to our friend the wheat farmer. “Settled law”, by now. Here’s the quote:

      “But even if appellee’s activity be local 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 and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

      Wickard v. Filburn, 317 U.S. 111 (1942)

      1. I would like to know, Justice Scalia, what constitutes “a substantial economic effect on interstate commerce”?

        1. I’m not sure what’s worse about Wickard v. Fillburn: how disgusting the decision is, or the fact that it was unanimous (mind you, this is 1942, after everyone who disagreed with FDR on the court had died off). However, Antonin Scalia was 6 when it was handed down, so I don’t think he can be considered responsible for it.

          1. He’s responsible for every opinion he joins that applies it.

            He could (try to) limit or overturn it, but he hasn’t.

            He’s got plenty of responsibility for the destruction of limits on the fed’s power.

          2. However, Antonin Scalia was 6 when it was handed down, so I don’t think he can be considered responsible for it.

            Kids need to learn responsibility from a young age, or else they grow up to be shitty Justices.

        2. Apparently a possible fluctuation in the rice of dope does.

          1. “The Rice of Dope” would be a good screen name.

      2. Key word: “activity.”

    4. “may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

      Couldn’t he have used that same logic in Lopez? Doesn’t the federal government regulate both education and firearms?

  7. Mental gymnastics are how I stay fit.

    1. doesn’t look like it’s working too well.

      1. Think how bloated and Godesky like I would be if I had a well thought out and consistent philosophy.

  8. I wonder, if any of the drug warriors came down with a fatal disease that could only be cured by smoking pot, would they lie down and wait to die, for the principle?

    1. I wonder, if any of the drug warriors came down with a fatal disease that could only be cured by smoking pot, would they lie down and wait to die, for the principle?

      Many more than not is my guess.

      1. Principles? Only results matter!

        1. We need city-STATISM to feed 7 billion pepulz! Fuck that Non-State freedom shit!

          “Historically, people in non-state societies are relatively autonomous and sovereign. They generate their own subsistence with little or no assistance from outside sources. They bow to no external political leaders. Nor are they routinely exploited by outsiders.”

          ~Elman R. Service (1975), Origins of the State and Civilization: The Process of Cultural Evolution. New York: Norton.

          1. Nice modifier of “external” political leader. Even illiterate pre-technological tribes had chiefs. Not routinely exploited by outsiders? Who’s asshole did he pull that from? When one tribe conquered another they took slaves or they killed the males and took the females. I’ll bet you’ll say that it’s just revisionist history and all primitive people were really nice to each other. They never ate each other or anything like that. Simply put, it’s all the same species and the same innate behaviors. Some tribes just had better technology and became dominant. By better technology I mean agriculture, writing, and better weapons. Those with the better technology and knowledge will always proliferate better than those who are more primitive. Get used to it. It’s not going to change.

            1. ^This, but don’t expect that to convince her/him/it/them. That’s why the best policy is to just ignore it.

            2. Even illiterate pre-technological tribes had chiefs


              Chiefdoms (i.e. proto-States, as the author calls them) had chiefs.

          2. …seven billion people?


            1. …universal health care and universal nutrition?

              You did bring up the subject of universal nutrition. Ready to deal with it now?


              1. …seven billion pepole?

                Well using stone tablets, cave paintings, and scribbling on Jasons Ho Ho wrappers….we have calculated that if he just stops eating we should just about make it!

    2. Well since I have to compete with them when I go to buy my lid, I doubt it. They will just continue to use their stash.
      A better question is would they go the legal route and get a prescription?

  9. Our recourse to this insanity:

    1) Supreme Court. If fails, then:

    2) R legislature, R president. If fails, then:

    3) Secession.

    Any other solutions?

    1. …and sing paeans to our glorious overlords?

    2. I was going to suggest waiting several decades until the court turns over significantly, then hoping for the (then) SCOTUS to overturn.

      The practical problem with this is that they don’t want to cause major societal upheaval with their decisions so even if a future SCOTUS might want to overturn the individual mandate on priniciple they’re not going to tear down the existing healthcare system.

      Shorter: We’re screwed unless the current SCOTUS overturns this.

    3. 2.5) Nullification

    4. At what point is it not more constructive to just not work or participate significantly in economic affairs?

      You guys can have the total state….now find a way to pay for it! Oh yeah…I’m on the dole now! Here’s where you can send my check!

      1. That is a pretty good summary of the USSR… “We pretend to work, and they pretend to pay us”.

      2. When your garden produces enough to feed you for the year, plus extra to sell off to pay the property taxes.

  10. This is not going to be a problem for Scalia. He wrote Employment Division v. Smith and signed onto Hosanna-Tabor, so clearly he can figure out ways to speak out of both sides of his mouth.

    1. I think it’s Liberal Viewer on YT that has a video showing Scalia arguing for and against Original Intent.

  11. Congress “may regulate even noneconomic … activity,” Scalia wrote in his concurring opinion

    The next Scalia concurrence will read, “If you can regulate noneconomic activity … you can regulate economic non-activity.”

    1. Just after observing, “If you can dodge a wrench, you can dodge a ball.”

  12. Once upon a time, when Congress respected its Section 8-limited powers, Congress complied with Article V by petitioning the states for an amendment to regulate the production of intoxicating liquors; the 18th Amendment. So what Congress needs, but won’t ask the states for imo, is an amendment to grant Congress the power to regulate intrastate drug production, marijuana in this case.

    What the post-FDR Court is doing, imo, is avoiding mention of Article V of the Constitution, Article V arguably regarded as the fed’s best kept secret. After all, if citizens knew from Article V that the states uniquely control what Constitution says, then citizens will also know that the states have absolute control over the power-hungry federal government. But feds don’t want that; it would mean that party is over. So the Court continues to weaken the Founding State’s intention for the Commerce Clause.

  13. How can anyone call a man who adamantly supports sweeping control by the Federal gov’t a “conservative”? Sorry – but we’re sure pushing the envelope on what a Conservative stands for. If I remember it’s small federal gov’t and powerful states rights.

  14. Which is why the most simple and workable solution is…..
    Shooting someone who violates their oath, or passes an unconstitutional law is an “affirmative” defense.
    Now they will not rule that shall not infringe means you can’t have one.
    Schools would teach government for fear someone who doesn’t understand the constitution would shoot them when they did nothing wrong.
    So you solve two problems with one simple law that doesn’t cost any money.
    Good luck getting government to figure out something that cheap that also works.

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