– Specter goes down
– The Korean War – still going on
– Ryan Grim points out that the truly despicable Mark Souder is now seeking forgiveness for moral transgressions after never believing in such a thing as a Congressman.
– Daniel Jack Chasan in Crosscut claims that Attorney General Rob McKenna’s lawsuit against the health care bill isn’t as ridiculous as most legal experts think it is. But what I found interesting was that on page 2, McKenna tries to address the hypocrisy of being outraged by the new health care bill, despite not being previously outraged by the ruling that set the most recent precedent for interpreting the Commerce Clause, Gonzales v. Raich. In fact, McKenna happily used that ruling to go after medical marijuana patients in this state. Here’s what Chasan reported:
McKenna concedes that five years ago in Raich, Justice Antonin Scalia concurred with the majority ruling that the commerce clause enabled Congress to seize marijuana plants being grown legally — allegedly for medical purposes — under California law. (Talk about strange bedfellows: Scalia concurred in the majority opinion written by John Paul Stevens, while Clarence Thomas joined Sandra Day O’Connor’s dissent.) But pot-growing is activity, not inactivity, McKenna notes, and besides, marijuana is clearly traded in interstate commerce.
Here’s part of the ruling from Gonzales v. Raich:
Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand.
Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v. Filburn, 317 U.S. 111, 128—129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U.S., at 154—155 (quoting Westfall v. United States, 274 U.S. 256, 259 (1927) (“[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so”)). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E.g., Lopez, 514 U.S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27 (1968)).
The lines that McKenna is trying to draw here between the two cases simply don’t matter within the context of the Gonzales v. Raich decision. There’s no distinction made between activity and inactivity or any reason to believe that failing to be insured wouldn’t be considered an “activity”. Congress can establish requirements for possessing health insurance because the lack of health insurance by large numbers of citizens would have a substantial effect on interstate commerce. Second, in the Gonzales v. Raich decision, they specifically addressed the case where the marijuana is not sold and never part of any market. What was decided was that even in that case, price fluctuations could theoretically cause the marijuana to enter the market, therefore it was within the scope of the Commerce Clause to regulate it.
That’s the aspect of the decision that never sat well with me, but there isn’t even an equivalent argument to be made for what McKenna is arguing. In a regulated health care system (which not even McKenna is saying Congress can’t implement), if you establish a rule that health care providers can’t reject people with pre-existing conditions, then you have to implement something to keep people from just waiting until they get sick before they buy insurance. Otherwise, the system goes bankrupt. And that’s done through either mandates or taxes. I don’t see any way that the Supreme Court would rule that one method is fine (implementing taxes), but the other is unconstitutional. And neither do most legal experts from what I can tell.