Department of "Huh?!": Larry Lessig Suffers Badly from Stockholm Syndrome in His Devotion to Nino Scalia Department
The surprising thing is that Lessig appears to have forgotten how Scalia prostituted his high office--and demonstrated that if you are not a Legal Realist you are a dupe--in Bush v. Gore. That train has sailed, that bus has rolled, that ship has hit the highway:
If there truly is a principled distinction to be made here--if Scalia and company are striking down gun regulation and violence against women statutes while upholding copyright and medical-marijuana restrictions not because they are political hacks but because they are judges--nobody, to my knowledge, has ever been able to explain how.
If Scalia does not vote to strike down Obamacare, it will be because of political pressure, not because of judicial doctrine or judicial restraint.
Why Scalia Could Uphold Obamacare: He may be a staunch conservative, but the justice understands the commerce clause better than anyone else on the Supreme Court.... Most non-lawyers have been bemused by the confidence that constitutional lawyers once had about the Supreme Court's likely decision in the Patient Protection and Affordable Care Act (aka, the Obamacare) case. The idea that this Republican Court would not give the Republicans their victory seemed silly to most, or at least naive....
Obamacare is plainly constitutional under the Court's existing precedents.... The simplest way to see this point is to focus on the jurisprudence of a key vote in any hypothetical 5-4 decision to strike the law -- Justice Antonin Scalia.
Scalia's commerce clause jurisprudence is among the most careful, and, in my view, precise.... His concurring opinion in Gonzales v. Raich... maps a very clear formula.... If you apply that test to Obamacare... there can be little doubt about the answer.... Congress can regulate an activity that is not interstate commerce so long as regulating it is "Necessary and Proper" to Congress' regulating interstate commerce.
Whether a regulation is "necessary and proper" is a question Scalia has also answered carefully.... Just as intrastate activities that don't substantially affect interstate commerce can be regulated, on Scalia's account, if "Necessary and Proper" to some commerce-clause end, so too should Congress have the power to regulate non-activities, so long as they are "Necessary and Proper" to some commerce-clause end.... The only question for Scalia -- and he made this question clear in oral argument -- is whether regulating a non-activity is also "proper."... Elhauge points to at least three statutes enacted by the first Congress that explicitly regulated non-activity.... On Scalia's method, whether or not it could have been regulated under the Commerce Clause, it can be regulated under the Necessary and Proper Clause if part of a more general commerce-clause scheme....
Fried and Tribe (and I and many others) want the ability to present the work of the Court in a way that belies the common but (we believe) uninformed view that all law, especially constitutional law, is just politics. If the Court strikes this law, then that hope fades....
I was lead counsel in a case that asked the Court to apply its newly announced will to enforce the limits on enumerated powers in the context of the copyright clause -- viewed by many as a "liberal cause." The Court said no.... The same with federal regulation of medical marijuana, which, the (said to be liberal) 9th Circuit had ruled, violated the limits on Congress's power. The Supreme Court -- including Scalia -- said it didn't. So with these liberal cases, limits were not enforced.
But when the cause is conservative, the willingness to limit Congress' power comes alive. The Court has struck laws regulating guns -- twice. It has struck a law that regulated violence against women. And if Obamacare falls, it will have struck down the most important social legislation advanced by the Democratic Party in a generation....
[T]he cynics (including most forcefully, our students)... insist the facts just don't support the theory. Even I would have to concede the appearance that it's just politics, even if I don't believe I could ever believe it.
The appropriate counter to Lessig is:
Legal Fiction: Justice SCALIA delivered the opinion of the court: The Court today announces a new clear standard to guide lower courts in their application of the commerce clause.... [A] law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.... A close look at the ratification debates reveals that the scope of the commerce clause was intended to be equal to, and co-extensive with, Justice Scalia’s political preferences.