Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Antonin Scalia's ObamaCare Problem
Reason ^ | March 1, 2012 | Damon W. Root

Posted on 03/02/2012 3:26:26 PM PST by neverdem

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...

(Excerpt) Read more at reason.com ...


TOPICS: Business/Economy; Constitution/Conservatism; Culture/Society; Editorial
KEYWORDS: commerceclause; obamacare; onetrackmind
He said nothing about the Obama requirement for Catholic institutions to pay for insurance coverage of contraceptives, sterilizations, and abortion-inducing drugs, eveen with the phony compromise that the insurance companies provide it for free. Catholic Scalia will be thrilled with that.

Plus Justice Scalia says Supreme Court should take back seat to voters

What about weathervane Kennedy? When he dissents from the conservatives, it's almost always from a libertarian viewpoint, e.g. Lawrence v. Texas, in which Kennedy wrote the opinion. IMHO, it was all about liberty. Maybe we'll get lucky, and they reverse Wickard v. Filburn which caused a huge expansion of the Commerce Clause.

1 posted on 03/02/2012 3:26:33 PM PST by neverdem
[ Post Reply | Private Reply | View Replies]

To: neverdem

Maybe Scalia can differentiate between “regulate” and “initiate”.


2 posted on 03/02/2012 3:32:38 PM PST by REDWOOD99 ("Everyone should pay taxes. Everyone should pay the same rate.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem

Outcome-based jurisprudence, in this case on behalf of the drug war. It stinks no matter who does it.


3 posted on 03/02/2012 3:33:56 PM PST by HiTech RedNeck (Sometimes progressives find their scripture in the penumbra of sacred bathroom stall writings (Tzar))
[ Post Reply | Private Reply | To 1 | View Replies]

To: REDWOOD99

If Obamacare can be viewed through the eyes of a ban somehow, then it might get Scalia’s blessing.


4 posted on 03/02/2012 3:35:14 PM PST by HiTech RedNeck (Sometimes progressives find their scripture in the penumbra of sacred bathroom stall writings (Tzar))
[ Post Reply | Private Reply | To 2 | View Replies]

To: neverdem

If this scumbag Damon W. Root spins any faster, he’ll drill a hole in the ground.
His column, however, represents exactly the kind of Democrat propaganda we can expect until the Supreme Court kills Mengelecare.


5 posted on 03/02/2012 3:37:08 PM PST by Lancey Howard
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem
Two appeals court justices, both friends of Scalia, cited his opinion in Raich to uphold Obamacare:

Both Silberman and Sutton cited Scalia’s opinion in 2005 upholding strict federal regulation of marijuana in the case of Angel Raich, a Californian who used home-grown marijuana to relieve her pain. “If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption,” Sutton wrote, “it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”

http://mobile.latimes.com/p.p?a=rp&m=b&postId=1165037.

6 posted on 03/02/2012 3:38:07 PM PST by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem
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.

Interesting - since it links "intrastate commerce" to the "interstate black market in the drug". Which, BTW, is a criminal enterprise ...

HOWEVER, I was NOT aware that the is a "black market" for interstate healthcare ...

Is there a healthcare "dealer" down on my street corner who can sell me "bootleg" healthcare insurance ???

7 posted on 03/02/2012 3:40:30 PM PST by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem

At what point do the citizen’s of the United States legally become slaves? I want people to think about it. At what point do taxes and fees and such make us Debt-slaves to the Government? At what point do regulations and ordinances force us to live a certain way, dress a certain way, eat a certain way?

Isn’t that a form of slavery when a man or woman has no choices left to them and have to obey the orders of an “overseer”, (bureaucrat), and the “master” (Politician or elected official)? And if they don’t they can be punished until they do obey.


8 posted on 03/02/2012 3:41:57 PM PST by The Working Man (The mantra for BO's reign...."No Child Left a Dime")
[ Post Reply | Private Reply | To 1 | View Replies]

To: Lmo56

I can see it now. IRS agents posing as “independent” health insurance providers on Craigslist. “No driver!”.


9 posted on 03/02/2012 3:44:45 PM PST by FedsRStealingOurCountryFromUs
[ Post Reply | Private Reply | To 7 | View Replies]

To: Lmo56
Interesting - since it links "intrastate commerce" to the "interstate black market in the drug". Which, BTW, is a criminal enterprise ...

It is a black market because Congress used the New Deal Commerce Clause to make it so.

HOWEVER, I was NOT aware that the is a "black market" for interstate healthcare ...

If Congress has authority make intrastate drug markets a crime, they can do the same to intrastate health care policies.

Is there a healthcare "dealer" down on my street corner who can sell me "bootleg" healthcare insurance ???

The cash you slip to your doctor will meet that criteria.

10 posted on 03/02/2012 3:49:44 PM PST by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
[ Post Reply | Private Reply | To 7 | View Replies]

To: neverdem

The Supreme Court will not be deciding whether or not Obamacare is Constitutional. They will be deciding whether or not the U.S. Constitution is still in effect or if it is simply a relic of our past.

The Court will strike it down because, otherwise, it cedes ALL control over EVERY aspect of EVERY American’s life to the federal government. There are five Justices that understand this.

If Obamacare, on the other hand, is upheld, we will be living in a totalitarian state. The Republic is dead.


11 posted on 03/02/2012 3:58:16 PM PST by FerociousRabbit
[ Post Reply | Private Reply | To 1 | View Replies]

To: Lancey Howard
If this scumbag Damon W. Root spins any faster, he’ll drill a hole in the ground.

We have a THREAD WINNER! Jim, What's his prize? Seriously, that pretty much captures it in a sentence.

12 posted on 03/02/2012 4:10:37 PM PST by neocon1984
[ Post Reply | Private Reply | To 5 | View Replies]

To: FerociousRabbit

You nailed it. Let’s just pray that the 5 who understand will continue living healthy lives until they get to rule.


13 posted on 03/02/2012 4:18:24 PM PST by demkicker (My passion for freedom is stronger than that of Democrats whose obsession is to enslave me.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: neverdem

Stunning! BEFORE there was the Scalia obumbumcare “problem” or Thomas oboomboomcare “problem” THERE HAS ALWAYS BEEN THE BIG FAT elenahkegan ogoonlooncare PROBLEM! Solve the elenkankan PROBLEM to bring legitimacy to this course FIRST.


14 posted on 03/02/2012 4:25:47 PM PST by parisa
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem

If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause’s boundaries simply cannot be “defined” as being “ `commensurate with the national needs’ “ or self consciously intended to let the Federal Government “ defend itself against economic forces that Congress decrees inimical or destructive of the national economy.” Clarence Thomas UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr. 1995— Justice Clarence Thomas


15 posted on 03/02/2012 4:29:04 PM PST by Pan_Yans Wife ("For the sake of our party we must stand united, whoever our nominee is."-Sarah Palin)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Lancey Howard

the cultivation and consumption of medical marijuana entirely within the confines of the state of California still qualified as “commerce...among the several states

How do you compare forcing people to buy something to consumption of grass. Now if he ruled we had to smoke dope..

I have stated before, Zero and the dims know this is going down in the court and they’re pandering to their base on contraception. “See we wanted to help you, so reelect me and we’ll change the court”.


16 posted on 03/02/2012 4:31:45 PM PST by Recon Dad (Gas & Petroleum Junkie)
[ Post Reply | Private Reply | To 5 | View Replies]

To: FerociousRabbit

Six of the SC justices are (nominally?) Roman Catholic, including Kennedy.

I’m hoping that Obama has shot himself in the foot in this regard, after pissing all over the RC church recently.


17 posted on 03/02/2012 4:36:01 PM PST by bkopto (Obama is merely a symptom of a more profound, systemic disease in American body politic.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: Recon Dad
How do you compare forcing people to buy something to consumption of grass. Now if he ruled we had to smoke dope..

I don't know, but two supposedly conservative appeals court justices did just that and cited Scalia in doing so. See my post #6.

I have stated before, Zero and the dims know this is going down in the court and they’re pandering to their base on contraception. “See we wanted to help you, so reelect me and we’ll change the court”.

I wouldn't bet the rent money that Obamacare will be rejected by SCOTUS.

18 posted on 03/02/2012 4:41:43 PM PST by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
[ Post Reply | Private Reply | To 16 | View Replies]

To: bkopto

“I’m hoping that Obama has shot himself in the foot in this regard, after pissing all over the RC church recently.”

The four conservative Justices, and even Kennedy in this instance, have been able to see first hand what Obamacare has spawned. It ain’t pretty and it clearly demonstrates it is only the beginning of what is to come.

Obama may have put the final nail in the coffin for Obamacare himself.


19 posted on 03/02/2012 4:47:39 PM PST by FerociousRabbit
[ Post Reply | Private Reply | To 17 | View Replies]

To: neverdem

“Scalia sided with the liberal majority and wrote a sweeping opinion in favor of federal power”

That’s what happens when you are outcome-oriented rather than just applying the constitution as originally intended. You might like the outcome even though you’re bending the constitution in that case but it’ll come back to bite you.

Thomas was right to apply the constitution as intended, even if against medical marijuana.

The last thing we need to do is give Mordor on the Potomac more power.


20 posted on 03/02/2012 5:23:58 PM PST by SharpRightTurn ( White, black, and red all over--America's affirmative action, metrosexual president.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: FerociousRabbit

The Supreme Court will not be deciding whether or not Obamacare is Constitutional. They will be deciding whether or not the U.S. Constitution is still in effect or if it is simply a relic of our past.

Either the US Constitution is still in effect or the Federal Government is just a bunch of thugs with guns. The Fed’s legitimacy rests solely on the constitution.


21 posted on 03/02/2012 5:48:41 PM PST by freedomfiter2 (Brutal acts of commission and yawning acts of omission both strengthen the hand of the devil.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: neverdem
Snip

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.

That makes my blood boil.

22 posted on 03/02/2012 6:19:03 PM PST by RedMDer (Forward With Confidence!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem

lol.

Liberatarians are crazy


23 posted on 03/02/2012 8:05:57 PM PST by GeronL (The Right to Life came before the Right to Pursue Happiness)
[ Post Reply | Private Reply | To 1 | View Replies]

To: neverdem; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; ...
SUPREME COURT OF THE UNITED STATES

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

24 posted on 03/02/2012 11:41:33 PM PST by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
[ Post Reply | Private Reply | To 1 | View Replies]

To: The Working Man
At what point do taxes and fees and such make us Debt-slaves to the Government?

At least one historian thinks that that is what made the freehold farmers of the Later Roman Empire into the serfs of the Dark Ages. Mind, they were not slaves, and slavery persisted from antiquity into the modern era. But serfdom was the "arrangement" by which ancient senatorial grandees -- who by then were also distinguished in degrees of nobility by such titles as "illustris" and "clarissimus", and also by the imperial title of "comes", or "(imperial) companion", our "count" -- agreed to protect the freeholders from the grasping and desperately needy imperial tax machinery by extending their patronage over them, in return for which the freeholders effectively became bondmen in the name of "amicitia", "friendship": as in, "Don Corleone, be my friend."

25 posted on 03/03/2012 3:49:13 AM PST by lentulusgracchus
[ Post Reply | Private Reply | To 8 | View Replies]

To: lentulusgracchus

Thank you for the explanation. If I remember correctly weren’t Serf’s considered to be less than a Slave? They were LITERALLY a part of the land they worked, Chattel or Cattle as some would say.

Slaves had to be fed, clothed and housed as they were considered an investment. They could be bought and sold and as they multiplied, their issue could be also. But a serf could not be sold unless the land was sold too. They had to provide their own food, clothing and shelter.

Unfortunately I can see this coming about again, oh sure it won’t be called serfdom and feudalism but the effects will be the same.


26 posted on 03/03/2012 8:41:17 AM PST by The Working Man (The mantra for BO's reign...."No Child Left a Dime")
[ Post Reply | Private Reply | To 25 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson