Replies

So, what’s your bottom line ATX 1985? Will the Supremes rule it UNCONSTITUTIONAL?

Well, I think the Wild Card will be Anthony Kennedy. We can count on Roberts, Alito, Thomas and Scalia and we should expect that Ginsberg, Stevens, Breyer and Sotomayor take the side of a strong Federal Government and the Commerce Clause. There argument could be that uninsured people crossing State lines and ending up in Emergency rooms effects inter-state Commerce.

The wild card is Kennedy, he has been a critical swing vote in a number of very important cases. But, I think he will side on the side of a loose definition of the commerce clause judging from his vote in Gonzales vs Raich (California State's right to medical marijuana). Judging from Clarence Thomas' passionate dissent, I think that this was an important precedent setting ruling.

"If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."

With that said, HiTech RedNeck had a post that explains people being forced to buy something is a different precedent. We can only hope that Kennedy buys this argument:

Post 38: Economic-based regulation of the private production and use of a fungible product (same thing that happened in Wickard) is not quite the same as regulation of the simple existence of people, unless people are also considered fungible. On a similar rationale, the USSC rejected the idea that Uncle Sam can ban guns in school zones.