Earlier this week, the Supreme Court refused to hear a challenge to a federal law banning felons from possessing body armor. (At issue is whether Congress overstepped its authority under the commerce clause when it passed a law prohibiting convicted felons from owning bullet-proof vests.) What makes the Court's decision to decline the case interesting is the dissent filed by Clarence Thomas. The Court, says Thomas, is tacitly accepting "the nullification of [its] recent commerce clause jurisprudence." Significance? The dissent can be read as the first shot in the battle to determine the constitutionality of the individual mandate of the Affordable Care Act.
Back story for those not following the slew of legal challenges to the ACA -- most of the legal challenges to the ACA question Congress' ability to mandate the purchase of health insurance via the commerce clause.
Interestingly, the dissent was joined by Antonin Scalia, who joined the majority in Gonzales v. Raich, which upheld the commerce clause in the regulation of marijuana. Scalia has never been strongly committed to contemporary conservative "federalism," but he is nothing if not a conservative cultural warrior -- the most recent example being his rant about how the Court's Boumediene opinion "will almost certainly cause more Americans to be killed" -- so his signaling that he will vote to strike down the individual mandate is unsurprising but still useful information.
On the other hand, as Rochelle Borboff notes, perhaps more important is the fact that Roberts, Alito, and Kennedy declined to join the Thomas dissent. This doesn't mean that these justices won't hold the mandate unconstitutional -- they may just be playing it close to the vest. It would be a mistake to read too much into this. But I've always thought that there will probably be at least five votes holding the mandate constitutional, and nothing about this week's case dissuades me.
--Scott Lemieux
