Orin makes a valid point about Comstock not being a favorable predictor for challenges to the individual mandate, especially if you are a formalist con law prof. I was at oral argument in Comstock and was able to discern the concerns of many of the justices. Above all was their concern about releasing sexually dangerous felons already in federal custody into the public. True, states could civilly commit predators, but the justices seemed worried that many states would not do so for a variety of reasons, and that there was no clear connection between many predators and any particular state. They also seemed impressed by the provision in the statute allowing any state to opt out by accepting its own predators back into its system. Given the state opt-out, it did not seem to them to be unduly intrusive into state sovereignty. So, just as Raich can realistically be considered a “drug/marijuana case,” Comstock can be considered a “sexual predator case.”
But this is somewhat beside Orin’s reasonable speculations about the assignment of the opinion by Chief Justice Roberts to Justice Breyer, who seems committed to rejecting any justiciable limit on the enumerated powers. I have made no secret of the fact I think this to be worrisome for challengers to the individual mandate (as is Justices Kennedy and Alito’s willingness to uphold the statute on Necessary and Proper Clause grounds). Still, Orin pays inadequate attention to three other Comstock “tea leaves” that point in the other direction:
First, and foremost, is Justice Scalia joining Justice Thomas’s dissenting opinion in Comstock. For those of us who noticed that Justice Scalia had not joining Justice Thomas’s concurring opinions in Lopez and Morrison, this was a remarkable development. Moreover, in his dissenting opinion in Comstock, Justice Thomas quotes from Justice Scalia’s opinion in Printz about the Necessary and Proper Clause being the last best hope of those who would defend the ultra vires powers of Congress, suggesting that Justice Scalia still hold that view. Considering the weight being placed by the government — and law prof predictors — on Justice Scalia’s analysis of the Necessary and Proper Clause in Raich, this bodes ill for Justice Scalia extending his reasoning about “noneconomic activity” to economic inactivity. And if Justice Scalia distinguishes his opinion in Raich this way, then how confident do mandate supporters remain in Justice Alito and Chief Justice Roberts’s votes? At a minimum, by joining Justice Thomas’s dissent, Justice Scalia seems clearly to be indicating that he does not share the gloss being put on his concurring opinion in Raich: that he has abandoned all limits on the commerce power. To the contrary, his vote in Comstock suggests that Justice Scalia’s opinion in Raich could provide a Necessary and Proper Clause road map for the challenge to the individual mandate. (and Justice Scalia’s vote in Comstock makes the new “talking point” of Supreme Court observers of an 8-1 decision upholding the mandate to be pretty unrealistic.)
Second, is the five factors or “considerations” about why the sexual predator law was necessary and proper: (1) the breadth of the Necessary and Proper Clause; (2) the history of federal involvement in the relevant arena, and the modest addition to that arena; (3) the sound reasons for the legislation in light of the government’s interest; (4) the statute’s accommodation of state interests; and (5) its narrow scope. Some of these factors support the mandate, while others cut against it. But the real question is why were these factors included in Justice Breyer’s opinion? Is it reasonable to guess that these factors mattered to him? Remember, he is the Justice who sees no justiciable limit on enumerated powers. Or is it more reasonable to speculate that they were added by the fifth vote for Justice Breyer’s opinion: Chief Justice Roberts? But if, as Orin speculates, Justice Roberts is signaling his abandonment of any limit on the Necessary & Proper Clause or the enumerated powers scheme by his choice of Justice Breyer to write the opinion, then why would he want these factors added? Could it be because they might provide a way to distinguish Comstock in a future case? Given that this would not have been Justice Breyer’s motivation for adding them, could it mean that Chief Justice Roberts may view Comstock as a more limited decision than does Orin? And I think everyone would agree that some of these five factors would allow any justice to distinguish Comstock from a challenge to the individual mandate if he or she wants to invalidate the mandate.
Third, is Justice Kennedy’s concurring opinion. I concede upfront that Justice Kennedy’s proposal of enhanced scrutiny for means-ends fit in Commerce Clause cases can be used in support of the mandate, which seems “fitted” to make the insurance company mandates “work.” On the other hand, enhanced scrutiny could reveal that the mandate is not designed to “carry into execution” the insurance company mandates, but rather to ameliorate their bad effects. This bootstrapping might fail enhanced scrutiny if it is considered an impermissible form of reasoning akin to the use of the substantial effects doctrine that was rejected in Lopez and Morrison. Be this as it may, I think Justice Kennedy’s concurrence is another overlooked tea leaf. His insistance that Due Process Clause-style rational basis scrutiny is inappropriate in a Commerce Clause challenge clearly suggests that, by joining the Raich majority opinion of Justice Stevens, Justice Kennedy was not abandoning the “New Federalism” of the Rehnquist Court, as seems to have been assumed by some observers.
Taking the first and third tea leaves together, this could mean that both Justices Kennedy and Scalia still see justiciable limits on the Commerce and Necessary and Proper Clause. So we would then be up to three. Might not the challenge to the unprecedented exercise of Commerce Clause power to impose economic mandates on the people provide these three with a golden opportunity to draw a line around the enumerated powers (a) to reaffirm the principle that these powers are limited, (b) without having to invalidate or call into question any other statute ever enacted by Congress? And if Justices Thomas, Kennedy, and Scalia happen to see the case this way, are court watchers still confident that Chief Justice Roberts and Justice Alito will disagree? Will Chief Justice Roberts and Justice Alito join the liberal justices in upholding the Affordable Care Act because they consider themselves formalistically “bound” by the “precedent” of Comstock ?
None of this is to claim that Comstock is a good case for challengers to the mandate. But neither does Comstock provide much of a predictor of what will happen when challenges to the mandate eventually reach the Court. And, as I have said before, none of these sorts of speculations aid in formulating sound legal arguments to guide courts in how they should rule.