OK, I take it back. I’ve read the oral argument transcript now, and I see why Scalia won’t uphold PACA. The reasoning behind my prior post was that in Gonzales v. Raich, Scalia had invoked the Necessary and Proper Clause to uphold federal power to regulate medical marijuana, and between that and his jurisprudential assumptions (deference and restraint, popular sovereignty) he do the same thing here. Apparently not. As he explains in his “question,” he differentiates this case from that one on the grounds that the individual mandate is Necessary, but not Proper. Its impropriety is due to the fact that by affirmatively ordering a purchase under the Commerce Clause, it makes the Commerce power effectively limitless, and that conflicts with our basic constitutional scheme of limited government.
I’m not sure I buy this argument. It seems to depend on viewing the mandate in abstraction from its context in the overall reform scheme. Congress is not simply requiring people to purchase insurance because that’s nice for insurance companies who are going through tough times due to rising costs from independent market forces. The rising costs are simultaneously imposed by the very same statute. The mandate is a means of implementing the access provisions. The access provisions regulate insurers, who sell insurance, which already exists, that is the principal means in our society for obtaining health care, which already exists. The question is whether one views the reform as a comprehensive scheme, or as an aggregate of disconnected provisions with various effects. The question is not whether it is Proper for Congress to assume the authority to command any activity it chooses under the pretext of regulating non-existent Commerce. The question is whether it is Proper for Congress to regulate already existing Commerce in health care and health care insurance, and if the comprehensive scheme which contains both access and mandate provisions is Necessary (reasonably adapted) to that end.
One last point: how can you tell who’s right about this Necessary and Proper business, me or Scalia? I don’t know. It sounds like a tremendously vague standard. The idea of invalidating something because it strikes you as Improper sounds an awful lot like substituting one’s own values for a careful textual interpretation of original meaning. If we go there, that means that something very fundamental has truly shifted in at least one “conservative’s” thought: a particular vision of how American society should be, a vision we do not all share and presuppose, will have replaced close reading, popular sovereignty, separation of powers and judicial restraint. That we should see such a shift in Scalia seems only to confirm Nietzsche’s epigram: when you look long into an abyss, the abyss also looks into you.