Thoughts on Justice Scalia’s Wonderful Concurrence in Gonzales v. Raich

Many thanks to Randy Barnett for his thoughtful views below on the relationship between the Necessary and Proper Clause and existing Commerce Clause doctrine. Randy’s argument is more or less the one Justice Scalia makes in his concurring opinion in Gonzales v. Raich: That the “substantial effects” test in Commerce Clause doctrine should be read as actually being an interpretation of the Necessary and Proper Clause. If you take that view, then once you have analyzed the individual mandate under existing Commerce Clause doctrine, you’re basically done: There is no more added power under the Necessary and Proper Clause, as the Lopez test has already factored in that power.

I have two responses to this argument. The first will be my emotional response, the response that reflects my values and my beliefs about the fundamental limits on federal government power. The second response will be my doctrinal response, the response that I think a lower-court judge should use when evaluating this argument.

1. The Emotional Response. I love it. This is a great way to reconceive the doctrine. It really does make conceptual sense that that the “substantial effects” doctrine is really about what is necessary and proper: They are both about the power to do things outside interstate commerce to try (in the aggregate) to regulate interstate commerce. An as someone who loves federalism, and who feels that it is extremely important that the federal government be a government of limited power, I find this theory tremendously appealing. It holds out the hope that there can be real limits on federal government power beyond the symbolic federalism of recent Supreme Court decisions. As someone who was saddened by the expansive interpretation of federal government power in Comstockrecall my “shock” at the breadth of SG Kagan’s oral argument — this gives me new hope. I hope the Supreme Court adopts this theory.

2. The Doctrinal Response. Justice Scalia’s concurrence was the view of one Justice, not a majority opinion of the Court. As best I can tell, existing doctrine has not adopted it. Indeed, Randy presents his argument as a chain of premises that reach “a conclusion that is not widely recognized” — aka, a claim of where the Supreme Court should go in the future, not a claim as to where its precedents go at present.

I don’t think Randy disagrees that current Supreme Court doctrine does not adopt this theory, as he presents his explanation as what he thinks the Supreme Court should do and what he thinks Justice Scalia will do — and suggests that Judge Hudson was essentially predicting Scalia’s vote in his opinion:

Does anyone want to bet serious money on whether Justice Scalia, the father of this newly minted Necessary & Proper Clause doctrine, won’t see all this by the time the case reaches the Court, that he won’t adopt Judge Hudson’s distinction between activity and inactivity as a judicially administrable limit on his doctrinal creation, and that he won’t distinguish Raich (and Wickard) from this case on this ground? I did not think so. Justice Hudson intuited all this in his ruling on Monday.

I will leave to Randy the “legal realist” question of what Justice Scalia might do, as well as whether it actually matters to the outcome of any future Supreme Court case on the mandate (does anyone think Justice Scalia is the 5th vote on federalism issues?, etc.). Plus, I’m happy to let Judge Hudson “intuit” future votes of individual Justices, if that’s what he was actually doing in his opinion. But just as a matter of doctrine, it doesn’t seem to me that Justice Scalia’s views — as much as I personally find them appealing, see Part 1 — are currently part of the existing law that lower court judges are duty-bound to apply.

Of course, I’d be delighted if I’m wrong on this doctrinally. As I say in Part 1, I find Scalia’s view very appealing, so I mean that literally: I would be delighted if I’m wrong on this doctrinally. And if Scalia’s view is adopted by the Supreme Court, I think it makes the constitutionality of the mandate a very close question. But whether I personally want the Supreme Court to adopt a view is unrelated to whether the Supreme Court has actually done so, and as best I can tell it has not done so.

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