Like me, Jason Mazzone believes that Justice Antonin Scalia was Judge Henry E. Hudson's intended audience in his ruling striking down the individual mandate in the Affordable Care Act:
To be sure, this is a novel interpretation of the necessary and proper clause. But it is novel only because no other court has confronted this precise question. And Judge Hudson's approach seems to me a plausible application of Scalia's opinion in Raich. “Congress may regulate even noneconomic local activity,” Scalia writes, “if that regulation is a necessary part of a more general regulation of interstate commerce. . . . The relevant question is simply whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power.”
Scalia might, of course, have used the term “activity” throughout his opinion in Raich because the federal law reached the activities of cultivating and possessing marijuana. Judge Hudson might therefore be construing a requirement where Scalia meant none. And a majority of the Supreme Court might reject any distinction in the necessary and proper clause between activity and inactivity—or reject Judge Hudson’s conclusion that not purchasing health insurance can, in light of the myriad ways in which the uninsured participate in the health economy, really be deemed inaction.
Nonetheless, once read in light of Scalia's concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.
My personal belief is that Republicans hate the law and want to see it gone, and so the conservative justices on the court, with the possible exception of Anthony Kennedy, will happily oblige them. The justices' identities are simply more partisan than we acknowledge -- does anyone remember Scalia decrying the 17th Amendment before it became a Tea Party cause?
Ezra Klein wrote yesterday that he thought the Hudson ruling was good news in the sense that he did not rule the entire law unconstitutional, as Virginia Attorney General Ken Cuccinelli had wanted, but instead drew a line through the individual mandate. I think that's optimistic.
In Citizens' United, the Court proved itself willing to go beyond the question originally posed to the Court to entirely dismantle campaign finance reform. If anything, that ruling showed that the court is entirely prepared to make broad rulings on matters of partisan fixation. The conservative majority on the Supreme Court will do whatever they have the votes to do, whether it's overturning the law entirely, just eliminating the mandate, or merely offering an angry dissent.
UPDATE: The always helpful Josh Barro points out that Scalia was big on repealing the 17th Amendment way before it was cool. Doesn't really change my analysis here, the Court is partisan, and that will weigh more on how it rules on the ACA than legal precedent.
