Supreme Court likely to uphold Health Care Reform Act

It is my opinion that the Supremes will uphold the constitutionality of the Health Care Reform act in a 6 - 3 decision. That Kagan, Sotameyer, Breyers, Ginsburg, Kennedy and Scalia will vote to uphold it and Roberts, Alito and Thomas (if he is not impeached or forced to resign first) will vote to deny it. If you read Scalia's opinions, he believes that the Constitution allows Congress broad powers to regulate commerce, not only under the Commerce clause, but also under the Necessary and Proper clause. Particularly interesting is his concurrence in the Gonzales v. Raich case. His opinion stated that:

the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce."

It is the third category that is being used to uphold the Act. Scalia held that:
It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.

And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."

"Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, supra, at 560; Morrison, supra, at 610 (same)."

"As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

"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."

"The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

So it may well come down to whether the court believes if the lack of health insurance is an activity that affects interstate commerce. The justice department brief filed in the cert to have the Supreme Court take up the 11th Circuit decision uses the concurring opinion by the Republican 6th Circuit Judge Sutton (and former law clerk of Scalia and member of the Federalist Society) extensively. Sutton held that:

The medical insurance market is large, id. § 18091(a)(2)(D), (J), and is inextricably linked to interstate commerce, see id. § 18091(a)(2)(; United States v.South-Eastern Underwriters Ass’n, 322 U.S. 533, 541 (1944). The rub is the other method of paying for medical care: self-insurance. There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something else—good fortune or the good graces of others—when the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce. In choosing how to regulate this group, Congress also did not exceed its power.
The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisite income to pay now rather than later for health care. Faced with $43 billion in uncompensated care, Congress reasonably could require all covered individuals to pay for health care now so that money would be available later to pay for
all care as the need arises. Call this mandate what you will—an affront to individual autonomy or an imperative of national health care—it meets the requirement of regulating activities that substantially affect interstate commerce."

This is a very sound argument, and if the Supremes follow their own precedent, then there is no question that the Act will be upheld.

Correct me if I am wrong here Dog, but didn't the Court say in Lopez that Congress had exceeded it's constitutional authority in that case?

If you are looking to Scalia and Kennedy to remove the last pretension that there is a constitutional limit to the power of Congress and the federal government and that the general government can force the citizens to participate in commerce of the federal choosing, you will, INMTBHO, be sorely disappointed.

You could be right, it does seem that the commerce clause does become more powerful every year.

But I am also hearing Dems wouldn't be too upset if this part of Obamacare was thrown out, would just move us closer to a single payer system.

Which is why with any luck SCOTUS will also find that the mandate is so central to perpetrating the fraud that the whole thing gets tossed.