Health Care Overhaul: After Congress, the Courts

As legal analysts argue over the possible success of constitutional challenges to the U.S. health care overhaul signed today, I am reminded of how even conservative justices have disagreed through the years on how much the federal government should be involved in state activities.

Justice Scalia voted in the 1995 United States v. Lopez to overturn a U.S. law that regulated guns near schools because it encroached on state authority, yet voted in the 2005 Gonzales v. Raich to uphold federal drug law that voided California’s medical-marijuana policy, over protests from dissenters that the law infringed on the states. Scalia opposed the federal government usurping local handgun regulation but let it override state choices about drug laws.

Justice Sandra Day O’Connor, a former Arizona legislator and champion of state power, declared those two positions “irreconcilable” in her 2005 dissenting opinion in Gonzales v. Raich. Justice Clarence Thomas, also dissenting, derided the Court majority’s rationale invalidating California’s medical-marijuana policy: “If Congress can regulate this under the Commerce Clause — then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers. … One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the states.”

That was five years ago. It’s a whole new bench, with more conservative, yet not necessarily predictable, justices. And by the time challenges to the landmark health care law reach them, there may be more changes in their ranks.