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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, February 09, 2011 ::
    Scalia, Obamacare, and the Necessary & Proper Clause

    Robert Verbruggen has an interesting piece at NRO today arguing: in the Obamacare-a-geddon case that's presumably coming, don't worry about Kennedy, worry about Scalia: he's the one who has accepted, in detail, an expansive interpretation of the Necessary and Proper Clause, a clause that, though not itself an enumerated power of Congress, expands the powers that are enumerated, both in Art. I Sec. 8 and elsewhere. Verbruggen is of course referring to Scalia's concurrence in Gonzales v. Raich.

    It's true that Justice Scalia is in some ways a conservative version of a New Deal Justice. He is very much like Justice Frankfurter (except for the Establishment Clause, but very much including the Free Exercise Clause); and course his views on substantive due process are on a wavelength with Justice Black's (with whom he would, again, differ on the Establishment Clause).

    But, as I told Lindsay Bachman, my former student who called my attention to the Verbruggen piece, Scalia also joined in then-CJ Rehnquist's highly non-New-Deal-ish opinion for the Court in Lopez, discovering for the first time since 1935 an outer limit to the Congress's Commerce Clause power and finding the a federal statute banning "possession" of a gun near a school to be beyond it. The N&P Clause did not save that statute. Is Obamacare more like this, or more like Gonzales v. Raich, in which Scalia concurred separately, over O'Connor and Thomas dissents, in a holding that -- given the undisputed validity of the federal Controlled Substances Act -- the N&P Clause meant that no constitutional violation occurred when the feds denied Californians the benefit of a state-enacted exemption for medicinal marijuana.

    Here's what I think Verbruggen' piece understates: in Raich, California (through a handful of its citizens, who were consumin', in reliance on a state medical marijuana law) was asserting a constitutionally required exemption from a concededly valid federal law. We know from Smith what Scalia thinks of judicially managed exemptions from concededly valid laws! (For drug-war sceptics: keep in mind that in Raich, the constitutionality of the Controlled Substances Act was not even drawn into question. And, policy to one side, I don't fancy the plaintiffs' chances if they had tried to persuade the Court to strike it down!)

    It seems to me that whereas state-applicable prohibitions on m.j. in Raich were found by the Court to be a part of a federal regulatory scheme that was not itself challenged, Scalia could conclude, as he did, that application of prohibitions in all the states equally was a policy that was linked to the Controlled Substances Act by the N&P Clause. But with Obamacare, the individual mandate is not just a part of the plan -- it virtually is the plan. Congress designed it that way, by deliberately leaving out severability. This probably makes its case much more like Lopez than like Raich.

    :: David M. Wagner 9:44 PM [+] ::

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