Response to Professor Barnett's discussion of Raich

Yesterday, Professor Randy Barnett posted on the affect of Scalia’s opinion in Raich on the outcome of the healthcare case.

In my view: Barnett is clearly right that Scalia believes the “substantialy affects” prong derives from the necessary and proper clause. And, the language of Lopez that is discussed in the Scalia concurrence seems to only permit “subtantial effects” where to do otherwise would impede the direct regulation of interstate commerce (assuming the court were to concieve of the mandate as noneconomic activity).

But, Scalia seems to view the prong as more explansive than regarding mere impairment. He says: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” Then, he applies rational basis review. In effect, this seems to me to mean that what substantially improves the effectiveness of a regulation of interstate commerce satisfies the Raich concurrence test.

Barnett tries to distinguish this case by narrowly defining the Affordable Care Act: he says that the purpose of the healthcare law is to get insurers to cover everyone, and the mandate doesn’t encourage this because it only ameliorates the harm to the insurers if they comply with their own new obligations. But, ameliorating the harmful effects of complying does make it more likely that insurers will comply. 

I think Bartnett’s strongest argument is that the mandate is “inappropriate” to use the language of Darby andMcCulloch. Language which Scalia certainly is concerned with in Raich. But, Barnett reads this as creating some sort of Commerce Clause puke test. (Barnett says “the unprecedented claim of power to impose a mandate to enter into contracts with private companies is highly improper”). This reeks of politicizing the judiciary and I think few justices would be willing to expressly justify declaring the mandate unconstitutional on such a ground.

Scalia says that the fungible nature of the controlled substance, that it may start out intrastate but become interstate, makes its regulation proper. I find it hard to distinguish this line of reasoning from the government’s argument that most people inevitably enter the healthcare market.
 
Finally, this all assumes that the mandate is considered a regulation of noneconomic activity. I think this is possible but unlikely. See Silberman’s opinion in Seven Sky. Scalia’s opinion in Raich highlights the difference between noneconomic intrastate activity and economic intrastate activity and suggests that statutes are much more likely to be deemed constitutional if the latter.