Paul Campos has an interesting theory about Justice Scalia:
In a forthcoming book, Scalia disowns Wickard v. Filburn, the 70-year-old precedent on which his 2005 vote [in Gonzales v. Raich] was explicitly based…. Wickard, Scalia now says, “expanded the Commerce Clause beyond all reason….”
It ought to be obvious that if someone like Scalia can, at this point in a half-century-long career, decide that Wickard isn’t a binding precedent, then the idea of binding precedent is essentially empty, which in turn highlights the inevitable emptiness of the idea of any useful distinction between law and politics.
But this is not obvious, least of all to Justice Scalia, who I have no real doubt actually believes the things he says and writes, no matter how many times his public acts contradict his avowed beliefs.
I go back and forth on this. I think Scalia believes on some level that he can use Wickard to say that Congress may criminalize even purely intrastate cultivation and use of marjiuana while refusing to recognize that it also makes the Affordable Care Act’s individual mandate constitutional. After all, one can draw easy parallels between Wickard and Raich (both were about cultivation of an agricultural commodity for which there was a nationwide market), and one can distinguish the ACA (which regulate services rather than commodities and which affects businesses that tend to operate regionally, even if they are owned by national or international companies).
But Campos notes that in Scalia’s concurrence in Raich, the justice emphatically endorsed the most sweeping interpretation of Wickard possible, calling the majority’s more limited holding “incomplete” and explaining:
Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause…. [T]he authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce….
Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions….
It’s hard to imagine the man who wrote that could believe that the Commerce Clause and the Necessary and Proper clause, taken together, wouldn’t give Congress the authority to enact the individual mandate — especially given his love for originalism. (Einer Elhauge dug up three examples of early mandates passed by the Founders themselves for both private purchases and health care provision — but see here for an unconvincing rebuttal if you’re determined to doubt.)
Maybe he is sincere. Maybe he really believes that Wickard is distinguishable (or should be overturned altogether), and maybe he really believes that, for some reason not made clear two centuries ago in McCulloch v. Maryland, the Necessary and Proper Clause doesn’t give Congress the authority to enact whatever legislation it needs in order to achieve what everyone acknowledges is a legitimate end: regulating the national market for health services and insurance. I don’t know. All I can say is that it’s weird that his sincere beliefs so frequently line up with the interests of the rich and powerful, and also that one can hold sincere and genuine beliefs that are nonetheless rooted in terrible character traits.
But I don’t know for sure. To be honest, I’d like to meet the guy someday. Maybe it wouldn’t help. Maybe you can never know for sure how much of each person’s makeup is sincere, and how much is bullshit. But I’d like to meet him.