In his March 18 Outlook commentary, “Will conservatives save Obamacare?” Robert Barnes opined that Justice Antonin Scalia might help save the provision mandating purchase of health insurance by individuals. The Commerce Clause of the Constitution is more than broad enough to support this provision; however, Justice Scalia’s support is hardly likely.
Has Mr. Barnes forgotten about Bush v. Gore, in which Justice Scalia, a champion of state determination, ruled for President Bush in a 5 to 4 decision that overruled the Florida Supreme Court’s recount order in the 2000 presidential election? In so holding, he joined in the concurring opinion, which said, “In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law,” and then said, however, that the instant case was “exceptional” and could be distinguished.
In the “Obamacare” case, I predict a 5 to 4 decision, along party lines, holding that the individual mandate provision is unconstitutional.
John R. Maney, Springfield