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Post Partisan
Posted at 07:07 PM ET, 09/28/2011

Obama may have more than five votes to uphold health-care law

The Obama administration’s decision on Wednesday to seek review of a lower court’s ruling on the constitutionality of its signature health-care program almost guarantees a Supreme Court decision by next June. And the administration is predicting victory.

“We believe the challenges to Affordable Care Act . . . will ultimately fail and that the Supreme Court will uphold the law,” the administration said in a statement.

So, does the president have the requisite five votes to prevail? I think so — and maybe more.

Prognosticating what the justices will do is always risky business, but here goes. (Sprinkle grain of salt here.)

The four more liberal justices on the court — Ruth Bader Ginsburg, Stephen Breyer and Obama appointees Sonia Sotomayor and Elena Kagan — should have no trouble reading the Constitution as bestowing broad powers on the federal government to regulate all manner of commerce. Although the court in recent years has pinched back congressional efforts to use the Commerce Clause to promulgate laws prohibiting guns near schools and those targeting violence against women, these were clearly non-commercial activities and quite different from the health-care law and its regulation of the medical insurance marketplace. Stronger and more directly applicable precedents remain, in which the court blessed the government’s regulation of wheat and marijuana production because these activities had an impact on interstate commerce.

 The marijuana case (known formally as Gonzales v. Raich) may be particularly important because two of the more conservative justices — Antonin Scalia and Anthony Kennedy — joined with their more liberal colleagues to uphold the law under the government’s Commerce Clause powers.

  Chief Justice John G. Roberts Jr. and Samuel A. Alito — both George W. Bush appointees — shouldn’t be counted out either. Roberts and Alito joined an opinion in 2010 that recognized the government’s “broad authority” to enact a civil detention scheme for sexual predators under a different constitutional provision. This provision allows federal lawmakers “to make all laws which shall be necessary and proper” to uphold the powers assigned to Congress — including the power to regulate interstate commerce.

  Clarence Thomas is the only member of the court to have heard the marijuana and the sexual predator cases and voted against the government both times.

By  |  07:07 PM ET, 09/28/2011

 
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