tag:blogger.com,1999:blog-8044318176622758692.post471707307741093004..comments2024-03-01T03:51:38.081-05:00Comments on Allergic to Bull: Tune In Tonight for a Smart Preview of the Obamacare Oral ArgumentsA.W.http://www.blogger.com/profile/10876021589516844048noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-8044318176622758692.post-39003331556232286742012-03-21T19:11:23.888-04:002012-03-21T19:11:23.888-04:00Nice insights, Ken. I'll definitely keep my e...Nice insights, Ken. I'll definitely keep my ear open for Scalia's questions that might distinguish Raich.<br /><br />Wild guess: they are not going to ask the parties 'why the heck shouldn't the Court overturn Wickard?' and then hit a loud buzzer every time they try to talk. Unfortunate.Dustinhttps://www.blogger.com/profile/15590811467601049788noreply@blogger.comtag:blogger.com,1999:blog-8044318176622758692.post-53101692458833626242012-03-21T14:06:10.888-04:002012-03-21T14:06:10.888-04:00Allow me to put in a plug to watching Scalia (as w...Allow me to put in a plug to watching Scalia (as well as Kennedy). <br /><br />In 2005, when the Supreme Court last heard a major Commerce Clause challenge to a federal regulation, Scalia sided with the liberal majority and wrote a sweeping opinion in favor of federal power. That case was Gonzales v. Raich, where the Court held that the cultivation and consumption of medical marijuana entirely within the confines of the state of California still qualified as "commerce...among the several states" because this intrastate use of medical pot "substantially affects" the interstate black market in the drug.<br /><br />Scalia wrote in his concurring opinion that Congress "may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce." Scalia also distinguished his vote on two other recent Commerce Clause cases, saying "Neither [Lopez nor Morrison] involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation."<br /><br />This goes to the main objection of the individual mandate -- i.e., that it is a purely private intrastate transaction that government cannot reach under the Commerce Clause. Yet, Scalia's previous ruling would indicate that he might be okay with the individual mandate, so long as it is a necessary part of a more comprehensive federal scheme (which everyone agrees, it is).<br /><br />So watch Scalia, too. Yes, he may ultimately come down against the individual mandate, but he's going to have to find some way to contradict or distinguish is earlier writings. And his questions might give us a clue.<br /><br />Good luck on the show.Ken Ashfordhttps://www.blogger.com/profile/00288895770874372009noreply@blogger.com