Posted by: captainfalcon | March 27, 2012

Obamacare Roundup

Oral argument on whether the individual mandate exceeds Congress’s commerce power was today.

1. Key language from Justice Kennedy here.

2. Transcript here.

3. Lyle Dennison, in an exercise of Herculean self-discipline, makes the only prediction warranted by the facts. (So much for Losing Scalia . . .).

4. Credit where credit is due.

5. The bottom line I acratically endorse.

Update, two other items:

A. Assessment from another savvy court watcher, agreeing with co-blogger Lyle’s evaluation.

B. Journalistic hyberbole.

I have not yet read the transcript because I will listen to it later tonight. As Chris points out in the comments, if what everyone’s saying about Scalia is right then my expectations have been defied. I will be interested to see whether he perceives any need to distinguish, or even acknowledge, his concurrence in Raich:

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. See Lopez,supra, at 561; ante, at 15, 21, 22. This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”Lopezsupra, at 567—568. . . . Lopez and Morrison affirm that Congress may not regulate certain “purely local” activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation.

The language is tailored to the vindication of Obamacare.



  1. This was well-timed. I was going to send off an email inquiring into your opinion of today’s testimony when I saw the post update in my mailbox.

  2. Also, for those keeping score at home, on the subject of Scalia’s motivation in Gonzales (and whether it would apply to the ACA), it is Chris 1, CF 0.

  3. Asking, not inquiring into; argument, not testimony; inbox, not mailbox; Raich, not Gonzalez; concurrence, not motivation, though possibly “motivation” could be made to work if you retooled the related parenthetical a bit.

    I would say that I do not play in your amateur league, but I think the more accurate claim is that (as far as I can recall, anyway) you do not play in mine. So how can we share a scoreboard?

  4. PWNED

  5. One: I prefer the colloquial mailbox. It’s as if the mailman hands me the cruft you (and others) send along.

    Two: It’s Gonzales v. Raich.

    Three: Scalia’s motivation, and not the text of the concurrence (a fairly straightforward matter), was at issue.

    Four: I was still right and you were still wrong.

    Your preferences for form over substance do not change any of the above and your bitterness is unbecoming.

  6. 2d graf was saying I don’t ever remember you making a prediction one way or another where do you do that?

  7. It was in person on the way to Mahoosuc Notch last year (after we had gotten all of the magic fabric talk out of our system). You insisted that Scalia’s concurrence in Gonzales v. Raich expressed a nuanced and genuine understanding of the Commerce Clause that would naturally lead him to support the constitutionality of the individual mandate. I argued that Scalia’s concurrence was clearly an example of motivated reasoning, that he simply contorted his interpretation of the Commerce Clause to support a law he approved of for political reasons and thus would be more than willing to do the same again with Obamacare (which he presumably dislikes).

    I don’t blame you for your mistaken analysis: you got to close to the subject. Your deep personal relationship with El Nino had clouded your judgment and he unfortunately let you down. It’s ok, I don’t think any less of your court-watching acumen after this embarrassing snafu. We can just note that I was right again and move on.

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