The Los Angeles Times’ David Savage reports that the 14 states that are suing the federal government over the individual requirement to purchase health care coverage (among other provisions) will have a hard time overcoming the current state of American jurisprudence. In 2005’s Gonzales v. Raich, for instance, the Supreme Court upheld federal restrictions on home-grown marijuana in California and even conservative justice Anthony Scalia “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.”
From Scalia’s concurrence:
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.
“In my view, there is a less than 1% chance that the courts will invalidate the individual mandate,” said George Washington University law professor Orin Kerr, a former clerk to Justice Kennedy. This less than 1% chance is certainly receiving more than its share of media attention and conservatives across the country are shamelessly exploiting the completely improbable possibility of repeal to win re-election.
The Attorneys General who have filed these cases did so in their capacity as politicians, not lawyers. Any credible lawyer understands that one’s personal opinion about the constitutionality of reform is irrelevant; the only think that matters is how the Supreme Court has interpreted the document. Or, as Matt Yglesias told me the other day, “it’s fun to talk about what the constitution ‘really’ says, but competent lawyers mostly focus on what the actual state of law is.”
And in the case of health care reform and the individual mandate, the Supreme Court has ruled since the 1930s that the federal government has the power to regulate economic activity (like the purchase of health care coverage). The sooner conservative lawmakers come to terms with this reality, the faster they can redirect the money they’re spending on frivolous lawsuits into funding their share of health care reform.