Scalia’s So-Called “Originalism” Is A Sham

Ken AshfordHealth Care, Supreme CourtLeave a Comment

There was no announcement today from the Supreme Court on the constitutionality of Obamacare, but, as has been written here and elsewhere, it doesn't look good.  

A neutral observer would have to wonder how even Scalia could strike down Obamacare, given his views of an expansive view of the Commerce Clause, articulated as recently as 2005 in his opinion in Gonzales v. Raich.

Well, surprise, surprise:

In Scalia’s new book, a 500-page disquisition on statutory construction being published this week, he says the landmark 1942 ruling Wickard v. Filburn — which has served as the lynchpin of the federal government’s broad authority to regulate interstate economic activities under the Constitution’s Commerce Clause — was wrongly decided.

According to an advance review in the New York Times, Scalia writes that Wickard “expanded the Commerce Clause beyond all reason” by deciding that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

Scalia himself cited Wickard in his 2005 opinion in Gonzales v. Raich, concurring with a 6-3 majority that said Congress may, under the Commerce Clause, prohibit a licensed medical marijuana patient from growing pot for personal consumption even if it’s legal in the state. A central foundation for that sweeping federal power, the winning side argued, was Wickard.

At the time, Scalia emphatically agreed, writing in his concurring opinion that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The Reagan-appointed justice’s decision upset libertarians who saw Raich as a squandered opportunity to limit the 70-year trend of reading the Commerce Clause expansively and giving the federal government broad authority when it comes to national economic regulation.

In the preface of his new book, Scalia, writing about himself in the third person, concedes that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here” in the health care ruling, the Times reports. He notes that while precedent factored into some of them, in other cases it’s “because wisdom has come late.”

In other words, now that he has to apply the same reasoning to Obamacare instead of marijuana, Scalia has discovered new "wisdom" about the expansive Commerce Clause.

“I have always had the impression that Justice Scalia’s primary approach to judging is political,” Tim Jost, a professor of law at Washington and Lee University, told TPM. “Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn’t.”

“This is typical Scalia,” added Adam Winkler, a professor at UCLA School of Law. “He respects precedents when they fit his conservative ideology and disregards them when they don’t. … “Once again, we see that Scalia’s originalism is a charade.”