Court Watching

The decision on Obamacare will come down this week, perhaps even today. And even before the actual decision comes down, the navel-gazing is underway. Writing for the Washington Post, Peter Wallsten has a theory:

Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.

Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing Obama’s approval.

How one interprets the Commerce Clause makes all the difference. The clause itself seems straightforward enough:

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Congress has this authority and everyone agrees on that. How much regulation Congress gets to do is where it gets sticky. One of the key cases in our modern understanding of the Commerce Clause is the Roosevelt-era decision Wickard v. Filburn. I've written about Wickard before and if you follow its logic, Obamacare pretty much has to stand.

What I suspect is that the conservative wing of the Court has been waiting to give Wickard another look and may have chosen to use the Obamacare case as its means. As recently as 2005, the Court used Wickard as a precedent in a case that essentially gave Congress the right to intervene in California's medical marijuana experiment. That case, Gonzales v. Raich, has been a source of consternation among conservatives and libertarians ever since.

Would the Court consider striking down Wickard in this case? Damon Root, writing for Reason, doesn't think so:

As I explained shortly before the Court heard oral arguments in the health care case, there was already good reason to think Scalia would vote against ObamaCare’s individual mandate. And since there’s zero chance the Supreme Court is going to overturn Wickard as part of its health care ruling, Scalia’s new hostility to that case only figures in as a sort of background influence.

The hostility that Root is referencing comes from a new book that Scalia has written, in which he is critical of Wickard. I'm not sure I agree with Root, however. Wickard is long since due for a good hard look, precisely because its logic pretty much lets Congress do anything it wants if there's even a hint of "commerce" involved. I'm thinking that there's at least a chance that the Court is going to give Wickard a good kick. I don't think there's necessarily any reason to assume that stare decisis will stop the Court. If stare decisis were always in play, Bowers v. Hardwick would still be on the books.