Wednesday, February 29, 2012

Politico makes an argument that Scalia could vote to uphold the constitutionality of Obamacare's individual mandate because of his vote in an earlier case, Gonzales v Raich, in which Scalia allowed Congress to regulate the private growth and use of marijuana.

But Politico's analysis of Scalia is based on the flawed assumption that Scalie is a legal conservative, rather than, as I believe is the case, a philosophical conservative. A legal conservative relies on precedent and believes in being consistent and looking only to the facts of the case and not to any desired outcome.

That isn't Scalia. He believes marijuana is bad, so he votes to allow the government to regulate its use. It's the same explanation as to why Scalia voted as he did in Bush-v-Gore... Scalia wanted Bush to win, so he figured out some way of getting to that result.

As to the mandate, I doubt Scalia is philosophically attuned to letting the government force people to buy products not of their choosing. Thus, I am pretty confident that he'll vote to overturn the mandate.