Will Raich bite Scalia? This has everything to do with Obamacare.

The District of Columbia Court of Appeals upheld Obamacare November 8 on a 2 to 1 vote. Those in favor of the healthcare mandate rejoiced because one of the judges who voted in favor was Laurence Silberman, a Reagan appointee.

The citation used by Silberman as a basis for compulsory purchase of health insurance is Wickard v. Filburn, 317 U.S. 111 (1942). The Supreme Court in that case ruled farmer Roscoe Filburn could not grow wheat for personal consumption because it would reduce the price of wheat if every farmer did this. Therefore Mr. Filburn was forced to purchase wheat on the open market even if it was his own wheat.

Silberman also references Gonzales v. Raich  545 U.S. 1 (2005) as a compelling authority. In this case, the Supreme Court ruled that the federal government could prohibit the cultivation of marijuana for personal use. In that case Justice Scalia wrote in the majority opinion, Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. … This is not a power that threatens to obliterate the line between “what is truly national and what is truly local”.

Predictably, the Washington Post has editorialized in favor of the Appeals Court ruling. For some reason they think that this ruling “trumped politics”. This shows little faith that judges rule on constitutional grounds by a major newspaper.

Steven Hayward of Powerline postulates that Silberman ruled this way to force the Supreme Court to revisit the Wickard decision. That would be diabolical indeed.

I believe that this will force Justice Scalia to re-think his decision in Raich. Scalia stretched the commerce clause of the constitution where it shouldn’t go. He will have to rein it back in when Obamacare reaches his court.

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One Response to Will Raich bite Scalia? This has everything to do with Obamacare.

  1. Pingback: Scalia and Thomas dine with healthcare law challengers as court takes case « The Fifth Column

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