I’ve written several posts already about the difficult road that the Constitutional challenges to ObamaCare face in the Federal Courts, but a five year old opinion by the Court’s most conservative Justice could make the challenges even more difficult:
Reporting from Washington – Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.
At issue in that case — just like in the upcoming challenges to the healthcare overhaul — was the reach of the federal government’s power.
Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.
They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.”
Even “noneconomic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.
The decision throws up a significant hurdle for the lawsuit filed last week in federal court by 13 state attorneys — all but one a Republican.
Here’s the relevant section from Scalia’s concurrence in Raich:
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
The analysis is longer than this, obviously, but the principle that Scalia states still stands and, if that principle is applied in the challenges to the health care law, the Attorneys General and are Plaintiffs are going to be in a very tight spot to say the least, because its not hard at all to see what the arguments on the other side will be:
In the healthcare legislation, signed by the president Tuesday, Congress required virtually all Americans to have health insurance beginning in 2014. Those who fail to do so could be assessed a tax penalty of up to $750 per year.
Legislators argued that the “individual mandate” was necessary because it would undercut the insurance market if individuals could just opt out of having health insurance. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage for their “preexisting condition.”
The court’s ruling in the 2005 case, Gonzales vs. Raich, “is an enormous problem” for those who contend that the healthcare mandate is unconstitutional, said Simon Lazarus, a lawyer for the Washington, D.C.-based National Senior Citizens Law Center.
“It clearly says Congress has vast regulatory authority over interstate commerce,” he said.
Indeed, and they have a conservative Justice to thank for it.