Ian Millhiser has a piece up that explains why the escape hatch regarding Gonzales v. Raich that Judge Henry Hudson left for Antonin Scalia might not work:
Indeed, Judge Hudson's decision striking down just one small part of the Affordable Care Act -- the requirement that nearly all Americans either carry insurance or pay slightly more income taxes -- places him on a collision course with the views of one of the Supreme Court's most conservative members: Justice Antonin Scalia.
The Constitution doesn't just give Congress sweeping authority to regulate the national economy, it also empowers Congress to "make all laws which shall be necessary and proper for carrying into execution" its authority to enact economic regulation. As Justice Scalia explains, this means that "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective."
Yeah, "every power" strikes me as almost as straightforward as the First Amendment's "make no law." But it seemed clear to me that Hudson was trying to give Scalia a pretext to rule against the ACA without contravening that opinion. Hudson was deliberately trying to find a way around that collision course by citing Raich to support his conclusion that no court has "extended the Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
