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Marijuana case might predict health care ruling

By Josh Richman
Thursday, September 29th, 2011 at 12:41 pm in healthcare reform, marijuana.

Eva Rodriguez, an editorial writer at the Washington Post, blogged an interesting take last night on why a 2005 U.S. Supreme Court ruling on an Oakland-based medical marijuana case could predict the court’s course on the constitutionality of the Patient Protection and Affordable Care Act.

She’s saying that “the four more liberal justices on the court — Ruth Bader Ginsburg, Stephen Breyer and Obama appointees Sonia Sotomayor and Elena Kagan — should have no trouble reading the Constitution as bestowing broad powers on the federal government to regulate all manner of commerce.”

That’s not surprising. But she notes that the Gonzales v. Raich marijuana case – brought by Oakland medical marijuana patient and activist Angel Raich – might be significant here because conservative justices Antonin Scalia and Anthony Kennedy joined with their liberal colleagues in 2005 to uphold the Controlled Substances Act’s ban on marijuana under the government’s Commerce Clause powers.

Joan McCarter, writing this morning at the Daily Kos, dug into Scalia’s concurrence to find the relevant language:

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.[...]

As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.”

This, Rodriguez and McCarter seem to believe, indicates Scalia might feel the same way about the Affordable Care Act’s individual health insurance mandate.

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