Scalia Could be a Surprising Health Care Swing Vote

Obama Administration lawyers think that Justice Antonin Scalia – normally at the core of the Supreme Court’s conservative wing — could be convinced to uphold the health care reform law’s requirement that all Americas must purchase health insurance.

To affirm the law, Administration lawyers need at least one of the court’s five conservative justices to side with them. Many observers have focused on Justice Anthony Kennedy as the most likely swing justice.

But a 2005 Scalia opinion affirming the federal government’s power to control locally grown medical marijuana gives some defenders of the health care law hope, according to a report from Bloomberg News’ Greg Stohr.

Scalia wrote in the marijuana case that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general economic regulation of interstate commerce.” Some think that supports government regulation of another noneconomic local activity – the refusal to buy health insurance. Administration lawyers have cited the case throughout their health care case briefs.

“It would be a huge coup for the administration to win Scalia over and certainly in the realm of possibility,” Theodore Ruger, a constitutional and health-care law professor at the University of Pennsylvania Law School in Philadelphia, tells Stohr.

Bloomberg Law analyst Betsy Goldman took a deeper dive into Scalia’s Commerce Clause opinions, which describe his views about the limits of federal government power to regulate private economic activity. She found that “government may have the opportunity to win Justice Scalia’s vote if it can demonstrate that without the individual mandate, Congress’s ability to regulate interstate commerce would somehow be undercut.”

While Kennedy is the more likely swing justice, it’s possible Scalia could also side with the Administration, Goldman tells Bloomberg Law’s Lee Pacchia:


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