HCR Struck Down in Fl.
I’ve avoided blogging about the HCR litigation, because the real action is obviously in the Supreme Court, which won’t get to it for a little while. But the willingness of Republican-appointed federal district judges to strike this law down is interesting. The latest is the district court in the Florida litigation. The idea that the government can’t — in principle — force you to buy a commercial product is, to me, laughable. Ever heard of Social Security? Medicare? There is such an easy way to justify the individual mandate under the tax power. And I find the Commerce Clause powers challenge to the mandate strangely formalistic in its reliance on a distinction between acts and omissions. Even on the Commerce Clause front, the holding in Wickard v. Filburn really does seem to dispose of the case, since that case also involved the regulation of the failure to participate in a market (i.e., production of corn for home consumption that allowed the farmer to bypass market transactions). That said, precedent is as precedent does. And so the challenge raises interesting questions about the intellectual integrity of certain conservative members of the Supreme Court. Scalia was content to rely on Wickard to uphold criminal prohibition of marijuana use and possession (see Raich, 545 U.S. at 37 n.2). I have heard colleagues argue his concurring opinion in that case provides useful insights into how he will vote in the inevitable HCR case. I have my doubts. Maybe I’m too cynical, but I would not be at all shocked to see the Supreme Court split 5-4 on this, though I won’t venture to guess who will get the 5.