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Scalia is releasing a new book in which he finds fault with a Roosevelt-era Supreme Court decision that forms a critical part of the legal undergirding for the health care reform law. For Scalia, that’s a dramatic turnaround, because he has previously embraced the premise of that decision in an opinion he authored in 2005 that supporters of the health care law have frequently cited.
Scalia himself cited Wickard in his 2005 opinion in Gonzales v. Raich, concurring with a 6-3 majority that said Congress may, under the Commerce Clause, prohibit a licensed medical marijuana patient from growing pot in his or her backyard even if it’s legal in the state. A central foundation for that sweeping federal power, the winning side argued, flowed from Wickard.
At the time, Scalia emphatically agreed, writing in his concurring opinion that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
http://tpmdc.talkingpointsmemo.com/2012/06/antonin-scalia-book-health-care-wickard-filburn-raich-constitution-commerce-clause.php?ref=fpnewsfeed“I have always had the impression that Justice Scalia’s primary approach to judging is political,” Tim Jost, a professor of law at Washington and Lee University, told TPM. “Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn’t.”