When the Department of Justice asked the Supreme Court to review the Affordable Care Act in whole, with the minimum coverage provision (the mandate) intrinsically tied to community rating (no differential premiums based on health status) and guaranteed issue (no exclusions for pre-existing conditions), court watcher
speculated that they would tailor their argument for one specific Justice: Scalia.
At TPM, Sahil Kapur reviews the amicus brief filed by the Justice Department, and finds that that is just what they have chosen to do.
In its amicus brief filed with the Supreme Court Friday, the Justice Department cited no fewer than 10 times the 2005 Gonzalez v. Raich case, in which Scalia (and Justice Anthony Kennedy) broke with the court’s conservative wing to hand down what scholars viewed as one of the broadest declarations of federal power under the Commerce Clause: a 6-3 ruling decreeing that Congress may ban a medical-marijuana patient from growing cannabis for personal use in California where it’s legal.
Raich was bound to come up either way as it’s seen as the most relevant precedent to the Affordable Care Act case, but the Obama administration is deploying it to box in Scalia specifically and conservatives broadly. Five separate times in the brief, the DOJ noted Scalia’s concurrence in the case.
“It’s just to say look, you got this right last time, and you were right last time and you should do the same thing this time,” Tim Jost, professor of health law at Washington and Lee University, told TPM.
Although laws about marijuana and health insurance appear to be separate issues, from a judicial standpoint they drill down to the same core question: the extent of the federal government’s constitutional authority to regulate.
Scalia would have to reverse his own precedent to rule against the mandate and the Affordable Care Act, which isn't out of the question.
Adam Serwer noted at the time that Scalia may well have an escape hatch: as Judge Henry Hudson noted in his ruling to strike down the mandate, Raich was about regulating “activity” (i.e. growing marijuana in one’s backyard) while the mandate is about regulating “inactivity” (i.e. not buying health insurance). Invoking this could help Scalia fend off charges of inconsistency.
Nonetheless, the Justice Department has structured an argument that would require Scalia to essentially vote against himself.