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The Radicalism (And Hackery) of the Health Care Cases Dissenters

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As mentioned below, the four dissenters to today’s health care ruling issued an unusual jointly signed opinion of quite remarkable radicalism. It would have radically re-shaped the constitutional order by not merely ruling the individual mandate as beyond the power of the federal government to regulate interstate commerce, but taken the even more radical step of limiting the federal government’s spending powers by preventing it from expanding Medicaid. Taken together, this would constitute a radical transformation of the American constitutional order. And because of these defects, the dissenters would have ruled the PPACA “invalid in its entirety.” Here is their justification for finding that the allegedly invalid sections could not be severed from the rest of the bill:

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spend- ing reductions, the exchanges and their federal subsidies,and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid. That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. Absent the invalid portions, the other major provisions could impose enormous risks of unexpected bur- dens on patients, the health-care community, and the federal budget. That consequence would be in absolute conflict with the ACA’s design of “shared responsibility,” and would pose a threat to the Nation that Congress did not intend.

This is, taken in isolation, true. But it also renders the logic of the dissent a complete shambles. The argument is that the mandate and the Medicaid expansion are not valid regulations of interstate commerce, but that they are also so essential to a broader regulatory scheme that the entire act must fall. As long as McCulloch v. Maryland remains good law, this argument is transparently wrong. If regulating “inactivity” is necessary to legislation addressing a problem that (as the dissent concedes in its first paragraph) Congress is empowered to address, then it is therefore constitutional.

And in addition to the internal incoherence of the opinion, it’s worth noting as well that Kennedy and Scalia both approved of the application of criminal sanctions to people growing medical marijuana for their own use. The positions of Thomas and Alito are radical, but are at least consistent. Kennedy and Scalia had no problem with a far more dubious use of federal power as long as it was being exercised by a Republican administration. This dissent is a particular embarrassment to both.

…I would also like to note that Ruth Bader Ginsburg is awesome:

The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”

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