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Sam Stein

Justice Scalia, Not Kennedy, Eyed As Key Vote In Support Of Health Care

First Posted: 02/ 3/11 05:53 PM Updated: 02/ 4/11 08:09 AM

WASHINGTON — Observers of the legal drama surrounding President Obama’s health care reform legislation have reached two broad conclusions: that it will ultimately be ruled on by the Supreme Court, and that Justice Anthony Kennedy will be the deciding vote.
The Supreme Court will, most likely, be the venue that finalizes or submarines the Affordable Care Act. On Thursday, Virginia’s attorney general formally requested that the justices bypass an initial appellate review and take up the case on an expedited basis.
But legal scholars and defenders of the bill are increasingly convinced that another court member, not Kennedy, will play the critical role. And the name tantalizingly floated, often in private conversation with health care advocates, is Antonin Scalia.
An unapologetic constructionist, Justice Scalia doesn’t strike the pose of philosophical champion for Obama’s signature legislation. But his opinion in the 2005 case of Gonzales v. Raich has led to speculation that he could begrudgingly okay the underlying principles of the individual mandate — the legally-contested provision at the heart of the bill.
In a separate concurrence to Raich’s majority decision — which held that Congress could criminalize the production of homegrown marijuana even in states that approved of its medical use — Scalia made what is widely regarded as one of the Court’s broadest interpretations of Congress’ ability to regulate commerce. Not only did the legislative branch have the “power to regulate activities that have a substantial effect on interstate commerce,” he wrote; it had the power to extend itself into “those measures necessary to make the interstate regulation effective.”

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