Retired Supreme Court Justice John Paul Stevens thinks that clear legal precedent is on the side of the Obama administration when the Affordable Care Act advances to the Supreme Court. He's basing that conclusion
on the precedent set in a 2005 medical marijuana decision by the court.
Stevens, now 91 and more than a year into retirement, said in an interview in Washington this week that he is skeptical about contentions that Congress lacked authority to pass the health-care measure, which requires Americans to either buy insurance or pay a penalty.
Stevens wrote the court’s opinion in the 2005 case, a 6-3 ruling that let the federal government ban marijuana even when the drug doesn’t cross state lines and is used only for medicinal purposes. As with health care, that case centered on Congress’s power to regulate interstate commerce.
“To the extent that the commerce clause is an issue in the case, it just seems to me very similar” to the medical marijuana dispute, said Stevens, who served on the court for 34 years.[...]
The 2005 marijuana ruling will be a pivotal precedent when the justices consider the health-care law. In his opinion for the court then, Stevens pointed to a constitutional provision letting Congress enact laws "necessary and proper" for carrying out powers specifically mentioned in the Constitution.
The majority included Justices Antonin Scalia and Anthony Kennedy, both of whom had voted to restrict Congress’s commerce- clause power in earlier cases. Scalia didn’t adopt Stevens’s reasoning, instead providing his own analysis in a concurring opinion.
Stevens suggested Scalia might be willing to uphold the health-care law even if he disagrees with its substance.
“I would expect that the merits wouldn’t have the slightest impact on his analysis of the constitutional issue,” Stevens said. “I’m sure he’ll approach it as a judge should approach it.”
For her part, court-watcher Dahlia Lithwick agrees, arguing that the Roberts court isn't likely to be that activist during an election year.
I remain unsure that there just are five justices at the high court eager to have the court itself become an election-year issue. I don't think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point. And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about. Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom. But the long game at the court is measured in decades of slow doctrinal progress—as witnessed in the fight over handguns and the Second Amendment—and not in reviving the stalled federalism revolution just to score a point.
We shall see next June, probably. For its part, the National Federation of Independent Businesses is eager to ensure that happens. They just filed an appeal to the Supreme Court of a decision by the U.S. appeals court in Atlanta that struck down the mandate, but not the entire law.