In an opinion piece over the weekend, Washington Post Supreme Court reporter Robert Barnes posits that the government may be able to “lure” eight of the nine justices to uphold the Affordable Care Act. Barnes asserts that even conservative bastion Antonin Scalia might agree with the government that Congress’s power to regulate commerce among the states extends to compelling people to purchase inflated health insurance policies.
As proof of this, Barnes points to the High Court’s 2005 decision in Gonzales v. Raich. Concurring with the majority opinion to uphold a law regulating home-grown marijuana, Scalia noted that the marijuana was “never more than an instant from the interstate market,” yet this logic cannot extend to Congress’s unprecedented attempt to force people into the health insurance market. Even though every American may be “potentially never more than an instant” from needing health care, there is a fundamental difference between procuring a commodity sold in interstate commerce and sitting at home and doing nothing.
Barnes also argues that Chief Justice John Roberts may also be “gettable” due to his interest in producing narrow opinions and keeping the Court from looking partisan and driven by ideology. This point is based more in hope than logic. Among other questions, why shouldn’t Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan vote the right way, strike down the law, and show they are not partisan, especially since two of them were appointed by President Obama? Barnes is correct, however, that Anthony Kennedy is a potential vote for either side (as Barnes reports, Kennedy has been in the majority in 80% of cases decided 5-4).
So how might the justices actually vote? Join us at Heritage Tuesday at Noon or tune in online for a panel discussion highlighting the best arguments the 26 states, NFIB, and their amici have presented to the High Court and predictions of how the justices will react. Our very own Ed Meese will host and our distinguished panel includes Steve Bradbury, who wrote amicus briefs for Nobel and other economists on the individual mandate, Medicaid, and severability issues; Erik Jaffe for Docs4PatientCare and the Galen Institute (among others); Michael Rosman for former DOJ officials (he also won another landmark Commerce Clause case, United States v. Morrison in 2000); and Carrie Severino for Speaker of the House John Boehner on the individual mandate, 43 Senators on the individual mandate and 36 Senators on severability.
With over 125 briefs filed, our panelists will wade through the best arguments and the myriad of amici and preview how the justices are likely to respond. How might the justices react to arguments that under the original meaning of the Commerce Clause, the individual mandate to purchase inflated health insurance fails to pass constitutional muster because it attempts to call into existence the thing to be regulated, rather than regulating existing commerce? Will the justices agree with the 26 states’ and NFIB’s various amici that the individual mandate is neither “necessary” nor “proper” even if it is deemed to be a regulation of interstate commerce? Or will they accept the government’s arguments, leading to virtually unlimited congressional power?
This piece originally appeared in The Daily Signal