Understanding Justice Scalia’s Concurring Opinion in Raich

There has been a lot of chatter lately about how Justice Scalia’s concurring opinion in Raich somehow binds him to rule for the government in the challenge to the ACA. As the lawyer for Angel Raich, I admit to being disappointed by the outcome of the case, by Justice Scalia’s vote, and by his opinion. But during the course of that litigation I became very familiar with the issues raised by that case, and since then have come to appreciate the problem with which Justice Scalia was wrestling. There are two very important implications of his opinion in Raich, and neither benefit the government’s case.

First, as I explained in my 2010 NYU Law & Liberty article, Justice Scalia clearly locates the “substantial affects” doctrine of Darby and Wickard, as well as the “essential to a broader regulation of interstate commerce” dicta in Lopez, in the Necessary and Proper Clause, not in the Commerce Clause — and in particular in the word “necessary” in that clause. Why is this so important? Because if the substantial affects doctrine is viewed as resting on the Commerce Clause, then there is a temptation to add the Necessary & Proper Clause to it as an additional theory of power, and failing to realize that Lopez and Morrison were actually limiting the scope of the Necessary & Proper Clause, not the Commerce Clause.  In short, there are judicially enforceable doctrinal limits to the scope of the Necessary  & Proper Clause.

Moreover, if the substantial effects and essential to a broader regulatory scheme doctrines are both grounded in the word “necessary,” then there is still the issue of whether a particular means deemed “necessary” is also proper.  In Printz, for example, Justice Scalia concluded that imposing a mandate on – or “commandeering” of – state legislatures to enact legislation, however essential it might have been to the regulatory scheme in that case, was still an improper means of effectuating Congress’s Commerce power.  True, Printz was based on the protection of states afforded by the Tenth Amendment, but the Tenth Amendment applies equally “to the people” as it does to the states. And, in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion that reaffirmed Justice Scalia’s characterization of the Necessary and Proper Clause as “the last best hope of those who defend ultra vires congressional action.”

In Raich, we never denied the proposition that the “essential to a broader regulatory scheme” doctrine was grounded in the Necessary and Proper Clause, but argued instead throughout the litigation that whether a law was “essential” and therefore “necessary” had to be survive greater scrutiny than mere rational basis review. When Justice Scalia adopted a rational basis approach to ascertaining “necessity,” however, we lost his vote.  (Significantly, Justice Kennedy, in his concurring opinion in Comstock, recently advocated a heightened rational basis scrutiny in Commerce Clause cases.)

In our challenge to the Affordable Care Act we are not asking for any heightened scrutiny of the “necessity” of the mandate for the broader regulatory scheme of the ACA, so neither are we challenging this crucial aspect of Justice Scalia’s opinion in Raich. Indeed, our severability analysis hinges on Congress’s finding that the mandate was “essential” to its scheme of regulating insurance companies.  Rather, we are making two claims not addressed in Raich by either the majority or by Justice Scalia.

  • First, that the mandate is not necessary “to carry into execution” Congress’s power over interstate commerce. Unlike in Raich, those who fail to purchase health insurance in no way obstruct the ability of Congress to enforce its regulations on insurance companies. Instead, Congress wants to ameliorate the negative consequences of successfully executing its insurance company regulations by forcing these citizens to compensate the insurance companies for the cost of the regulation by transferring their wealth to these companies. These consumers are being forced to buy expensive policies priced far above their actuarial risk for the purpose of providing what amounts to a subsidy or transfer payment to the insurance companies. In other words, the need for the mandate assumes that insurance companies will comply with Congress’s commerce power regulation, but suffer economically as a result. Neither the Court in Raich nor Justice Scalia were addressing this claim of power by the government in any way.
  • Second, unlike in Raich, we are claiming that, however “necessary” they may be, mandates of this sort are an improper means of executing the Commerce Power of Congress.   I won’t elaborate on this claim here, except to note that it is precisely Justice Scalia’s opinions in Raich and  Printz that make so very clear why this claim is one is a serious one that must be addressed.
But there is a second important lesson to be drawn from Justice Scalia’s opinion in Raich.  Put simply, Raich was an “as applied” Commerce Clause challenge. In Raich, we conceded that Congress had the power to prohibit the interstate commerce in marijuana, but claimed that a subset of the national market in marijuana – namely wholly intrastate cultivation and possession that was authorized by the laws of some states – was outside of the power of Congress to reach. Yet no such challenge has ever succeeded. (Think Wickard, Heart of Atlanta, Perez, etc.) Recently, my colleague, Nick Rosenkranz has argued here that, on textualist grounds, no such challenge should ever succeed.  When we litigated Raich the significance of this aspect of the case was not well understood, but I think it accounts for why Justice Scalia was moved to offer the Necessary & Proper Clause analysis he did.

In Raich, we were asking the court to carve out a subset of the class of activities Congress sought to regulate and find that this subset was beyond its power under the Commerce Clause. In his concurring opinion, Justice Scalia was wrestling with the following practical issue: Given the fungible nature of the commodity, what if “to carry into execution” its power to prohibit interstate marijuana, Congress decided it was “necessary” to regulate the subset of activities involving the identical commodity inside a state — regardless of whether it was being bought and sold and was therefore “noneconomic”?  He concluded that Congress could draw the circle, that is define the class, as widely as it had a rational basis for believing it needed to be drawn to enable it to effectively enforce its regulation of interstate commerce that is within its powers.  If so, as Justice Stevens suggested during his questioning of Paul Clement in oral argument, there was simply no way to win an “as applied” Commerce Clause challenge by identifying a subset of the class of activities that Congress sought to regulate.

But the challenge to the individual mandate is a facial challenge like that in Lopez and Morrison.  Unlike “as applied” challenges, facial challenges have succeeded (even where a subset of the class, like guns that had moved in interstate commerce, might well have been within the power of Congress to reach).  Indeed, in his dissenting opinion in Raich, Justice Thomas noted in a footnote that the majority’s decision had no affect on future facial challenges, such as those brought in Lopez and Morrison.  Unlike Raich, we are facially challenging the claim that Congress has the power to impose mandates to engage in economic activity by entering into contracts both because (a) such mandates are not necessary to carry into execution the regulation of the insurance companies and because (b) the unprecedented claim of power to impose a mandate to enter into contracts with private companies is highly improper. The “subset” enforcement problem Justice Scalia was grappling with in the “as applied”  challenge in Raich simply does not exist here.

Just because the individual insurance mandate is unprecedented does not automatically render it unconstitutional – though, in Printz, Justice Scalia affirmed that the fact that so attractive a power has never before been claimed by Congress is evidence the power does not exist. But the unprecedented nature of the mandate does make this a case of first impression, which means it is not directly covered by either the majority’s or Justice Scalia’s opinion in Raich.   To distinguish his opinion in Raich from this case, Justice Scalia would not even have to break a sweat.