Health Care Law: Does One Supreme Court Justice Hold Its Future ?


"There actually is an argument for a national response to a national and international drug market, in a way that's different from guns near schools. Kennedy was persuaded by the government's argument that it's not purely intrastate" said Dorf.

"I think Raich is important," says Siegel, "because it illustrates Justice Kennedy's principal concerns when it comes to the commerce power. He's prepared to give Congress wide latitude when Congress is regulating markets."

Federal Judge Jeffrey Sutton, a George W. Bush appointee and former clerk to Justice Antonin Scalia, sits on the U.S. Court of Appeals for the Sixth Circuit. Sutton was the first judge nominated by a Republican president to vote in favor of the mandate when a similar case came before him. He relied in part upon the Raich case.

Sutton wrote, "And if Congress could regulate Angel Raich when she grew marijuana ... for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care."

But Barnett, who also represented Angel Raich, says that the Raich decision was not the final word from Kennedy on the scope of Congress' power.

The Mentally Ill and the Necessary and Proper Clause

"Some people might have been tempted to say that after Kennedy joined Stevens in the Raich case, without any separate opinion, that he may have given up on policing the limits on Congress' power," says Barnett.

Barnett points to another case dealing with the Necessary and Proper Clause of the Constitution. The provision grants Congress the authority "to make all laws which shall be necessary and proper for carrying into execution "the powers of Congress outlined in the Constitution."

In United States v. Comstock, the court upheld a federal civil-commitment statute authorizing the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. The respondents in the case had argued that Congress had exceeded its authority.

"The court is correct" Kennedy wrote in agreement to hold that the challenged portions of the statute "are necessary and proper exercises of congressional authority."

But he also wrote to express caution "that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances."

"He's reaffirming his approach in Lopez that the powers of Congress are limited and courts have a role in policing those limits," says Barnett.

Arguments in the Affordable Care Act will be held over two days in March. That the court ordered 5½ hours of argument reflects the complexities of the challenge to the health care law. The justices will consider the mandate as well as several other issues pertaining to the signature legislative achievement of the Obama administration.

The only other recent case to gain such attention from the public was the closely divided case of Bush v. Gore, which pertained to recounting the Florida votes in the 2000 election.

The decision in the heal care law is expected to come down at the beginning of summer, smack in the heart of the 2012 presidential campaign.

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