The individual mandate challenge in the Fourth Circuit drew three judges appointed by Democrats, two by President Obama. Since James McReynolds retired from the Supreme Court in 1940,
I believe that no judge appointed by a Democratic president has recognized any identifiable judicially-enforceable limits to Congress’s power to regulate interstate commerce [I wrote that in haste, and as I was driving to preschool, a couple of recent examples occurred to me. I think all these examples occurred in the context of criminal laws and were based on Lopez/Morrison, and were of course lower court judges, with all of the Democratic-appointed Supreme Court Justices recognizing, thus far, no practical limits on the commerce power.]. That these three judges will vote to uphold the mandate, the signature policy achievement of a Democratic president and Congress, and do so unanimously, is almost a foregone conclusion, and, for reasons explained here, the question of whether three Democratic judges think that the activity/non-activity distinction is persuasive is entirely irrelevant to the ultimate outcome of the litigation.
I do find it amusing, thought, that, as Orin reports, “Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned ‘activity’ as a crucial factor, and the Constitution itself does not mention the word.”
I don’t think that the Democrats want to fight this battle over the 18th or early 19th century understanding of Congress’s power to regulate interstate commerce.
UPDATE: For the benefit of those who can’t be bothered to clink on the link to my previous post, here is the argument in nutshell: “What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.” The five Republican Justices on the USSC are not in any practical way bound to follow the “best” interpretation of precedent, but they will not follow a wholly implausible one. Regardless of what the Fourth Circuit judges think, the inactivity/activity distinction is a plausible one, and whether the majority on the USSC follows it will come down to a variety of non-legal factors, along with one very important legal factor: can the defenders of the law persuade at least one of Justices Kennedy, Alito, Scalia, and Roberts that upholding the law doesn’t mean giving Congress plenary power to regulate everything and anything.
FWIW, I can easily see the USSC voted anywhere from 8-1 to uphold the law to 5-4 to invalidate it. The latter scenario becomes most plausible if the USSC doesn’t rule until 2013, and in the meantime the GOP wins the presidential elections in 2012, keeps the House, and takes the Senate.