Quick And Dirty Review
The fate of the Patient Protection and Affordable Care Act, if analysts have it right, lies in the hands of Justice Kennedy and Chief Justice Roberts. Justice Broccoli is a lost case, notwithstanding his vote upholding application of the Commerce Clause in Gonzalez v. Raich, in which
Scalia noted the commerce clause empowers Congress to regulate not only the "channels" and "instrumentalities" of interstate commerce but also intrastate activities that "substantially affect" interstate commerce, and that the constitution authorizes Congress to enact measures that are "necessary and proper" to effectuate its objectives when exercising authority under the commerce clause or any other enumerated power.
Scalia, who voted to prevent a recount in Bush v. Gore (and now distorts the Court's finding), thus handing the presidency to Republican George W. Bush, apparently is yet again succumbing to the lure of partisanship.
The GOP Justices (three, anyway) were animated by the limiting principle. Justice Kennedy asked Solicitor General Verrilli
If Congress —if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.Cuccinelli recalled Chief Justice John Roberts asking why health insurance is unique as something the government can require Americans to purchase. Justice Antonin Scalia then chimed in, asking whether the government could require Americans to exercise, a regulation that would presumably also lead to improved health.
This is just plain silly. In a November post on The Monkey Cage evaluating the likelihood of the Supreme Court upholding the PPACA, reader Scott Monje explained
insurance isn’t really a commodity like broccoli. Health care is the commodity; insurance is the means for paying for it. No one has proposed opting out of health care, only out of paying for it. To borrow the GOP’s slippery slope analogy, where will it all end? If people can opt out of this, will they soon be allowed to opt out of paying for their broccoli at the supermarket?
And interviewed by Ezra Klein, Harvard law professor Charles Fried, a solicitor general under President Reagan, notes
the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.
Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.
Nevertheless, both Scalia and Kennedy argued that the imposing a mandate amounted to regulating inactivity (rather than activity). Justice Kennedy contended "The reason this is concerning is because it requires the individual to do an affirmative act." But Fried counters
Activity and inactivity is not in the Constitution. Now, there are millions of cases that talk about the power to regulate activities that affect interstate commerce, from which (law professor and critic of PPACA) Randy Barnett drew the conclusion inactivity is not included. It just hadn’t come up!
And if 95 percent of them are in that market every five years, they’re in it. They haven’t put that off. They’ve gone to a health-care clinic. They’ve procured a prescription for a prescription drug. Ninety-five percent of the population! So where’s the inactivity?
If the constitutionality of the Act- even of the most controversial portion, the mandate- were considered on its merits, the Administration would have little to worry about. But Mr. Dooley's aphorism, "No matter whether the country follows the flag or not, the Supreme Court follows the election returns," still applies. The Administration did not persuade the country of the necessity of requiring payment of health insurance to prevent, or at least curb, the incidence of free riders. Notwithstanding the rescue of the domestic automobile industry, the signature achievement of the Obama presidency is generally assumed (at least by the media) to be health care reform. And there is an election coming up, which has not escaped the attention of the United States Supreme Court.