I understand that everyone here at DU is a constitutional expert, but I thought it might be nice to see what some pros had to say.
http://tpmmuckraker.talkingpointsmemo.com/2010/03/could_scotus_be_the_death_panel_for_health-care_reform.php...
Jack Balkin, a constitutional law professor at Yale Law School, extends that argument. In a recent blog post, he notes that in the Raich case, Justice Scalia found that Congress can use the Commerce Clause to regulate, as Balkin put it, "even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective" (itals TPM's). People who don't buy health insurance, Balkin argues, aren't simply "doing nothing," as Rivkin, Barnett et al. claim. These people pass on their health-care costs by going to the emergency room, or buying over-the-counter cures. "All these activities are economic, and they have a cumulative effect on interstate commerce," writes Balkin.
Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence -- one that all but ignores precedent. "I think the only person who shares is Justice Thomas." said McGinnis, now a constitutional law scholar at Northwestern Law School. "It's a very difficult argument to make under current precedent."
...
Frederick Schauer, a constitutional law scholar at the University of Virginia, expresses what seems to be the most reliable view. He notes to TPMmuckraker that in the Lopez case, and in a subsequent 2000 case involving the Violence Against Women Act, the Supreme Court has held that there are limits on what constitutes commercial activity under the Commerce Clause -- shifting from the "anything goes" approach that had predominated since the New Deal. Despite the subsequent medical marijuana ruling, Schauer says, those cases offer the "slightest glimmer" to opponents of the bill -- but not much more than that. So twenty years ago, said Schauer, there would have been essentially no chance of the court striking down the legislation. Today, he says, "it's a real long-shot," but not completely out of the question.
There's something else worth considering, though. The fears of reform supporters rest in part on the worry that the Supreme Court's five conservative justices will simply ignore the relevant jurisprudence and use their authority to make a nakedly partisan ruling -- as, many argue, they already did not so long ago.
That seems highly unlikely. Striking down health-care reform, despite the clear weight of evidence that it fits well within the scope of the Commerce Clause, would "be more aggressive than Bush v. Gore," says Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Law School. "They're probably not eager to do that again."
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