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In healthcare case, is Obama administration trying to woo Scalia?

Is there any way to convince Justice Antonin Scalia that the Commerce Clause gives Congress the authority to mandate health care coverage? The conservative justice is seen as a virtual surefire vote on the side of the challengers to the federal health care law.

But in an amicus brief filed Friday, the Justice Department relies heavily on a Supreme Court case which held that the Commerce Clause gave the government the authority to prohibit individuals from growing medical marijuana for their own use despite a California state law making it legal. And, as Talking Points Memo DC points out, that reasoning was backed by Scalia himself.

In the 2005 case Gonzales v. Raich, the Scalia joined the Court’s 6-3 majority. Justice John Paul Stevens wrote for the majority that: “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

While the reasoning in that case is relied upon heavily by the government, it may not necessarily be the ticket to woo Scalia to the government’s side. Though he joined the majority in judgment, Scalia also wrote a concurrence that explained – and limited – his embrace of Commerce Clause power in the case.

“[U]nlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone,” Scalia observed.

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