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Justice Scalia, Not Kennedy, Eyed As Key Vote In Support Of Health Care

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WASHINGTON -- Observers of the legal drama surrounding President Obama's health care reform legislation have reached two broad conclusions: that it will ultimately be ruled on by the Supreme Court, and that Justice Anthony Kennedy will be the deciding vote.

The Supreme Court will, most likely, be the venue that finalizes or submarines the Affordable Care Act. On Thursday, Virginia's attorney general formally requested that the justices bypass an initial appellate review and take up the case on an expedited basis.

But legal scholars and defenders of the bill are increasingly convinced that another court member, not Kennedy, will play the critical role. And the name tantalizingly floated, often in private conversation with health care advocates, is Antonin Scalia.

An unapologetic constructionist, Justice Scalia doesn't strike the pose of philosophical champion for Obama's signature legislation. But his opinion in the 2005 case of Gonzales v. Raich has led to speculation that he could begrudgingly okay the underlying principles of the individual mandate -- the legally-contested provision at the heart of the bill.

In a separate concurrence to Raich's majority decision -- which held that Congress could criminalize the production of homegrown marijuana even in states that approved of its medical use -- Scalia made what is widely regarded as one of the Court's broadest interpretations of Congress' ability to regulate commerce. Not only did the legislative branch have the "power to regulate activities that have a substantial effect on interstate commerce," he wrote; it had the power to extend itself into "those measures necessary to make the interstate regulation effective."

In the case of Gonzales v Raich, this meant the feds could go after people who were growing bud for home consumption because, while that growth and consumption was decidedly a local issue, the market for illegal drugs crossed state lines. With respect to insurance, it could, theoretically, be extended to mean that Congress can penalize individuals for not buying coverage before they use it because the health care market crosses state lines.

"I think it would be impossible for Scalia to follow his own opinion in Gonzales v. Raich where he said Congress has every power it possibly needs to make sure its other powers work and not uphold the Affordable Care Act," said Ian Millhiser, a policy analyst who specializes in legal issues at the Obama-allied think tank, Center for American Progress.

The prospect of the bench's most reliable conservative casting the key vote for Obamacare is, for many, too implausible to consider. And in conversation, various court observers and health care reform proponents responded to hypothetical Scalia support with the same earnest dismissal: "He'll find a way to oppose it."

The way isn't all that unclear. Even those who've directly dealt with Scalia's broad interpretation of the commerce clause in the past say the justice won't have to "eat his words" once health care reform makes it to the high court.

"It's just not true," said Randy Barnett, the lead counsel for the plaintiffs in Gonzales v. Raich and a Georgetown University law professor. "The way the case is being litigated and the theories that are going to be presented to the Court are going to be substantially different than the Raich case ... Number one: the Raich case involved activity, first and foremost. So, if the issue is inactivity [not buying insurance] as opposed to activity [buying it], Justice Scalia [won't be bound by his past words]. He used the word "activity" or "activities" forty-two times in his concurring opinion in Raich.

"Even forgetting activity or inactivity, because that's just a way of explaining the issue, everybody agrees that this is unprecedented," Barnett added. "The government has never done this before ... So nobody on the court is bound by anything they've said before."

All of which is not to say that Scalia will determine that the individual mandate is unconstitutional. For starters, the mandate is now, by definition, an act of Congress and there is a certain pause that justices have when deciding whether to overrule the legislative branch. But mainly, Barnett posits, Scalia's "default position" could be that "a regulation of the national economy," even a "big regulation," isn't necessarily all that problematic.

And if not Scalia, then perhaps another unsuspected justice.

"[I]t's way too simplistic to think that Justice Kennedy is necessarily the swing vote," said Barnett. I would not take any vote on the Court for granted, at least on the right side of the Court."

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