2005 marijuana case may inhibit challenge to health care bill

LA Times:

Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.

At issue in that case -- just like in the upcoming challenges to the healthcare overhaul -- was the reach of the federal government's power.

Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.

They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority "to regulate commerce."

Even "noneconomic local activity" can come under federal regulation if it is "a necessary part of a more general regulation of interstate commerce," Scalia wrote.

The decision throws up a significant hurdle for the lawsuit filed last week in federal court by 13 state attorneys -- all but one a Republican. The Virginia attorney general filed a similar, but separate suit.

The suits claim that the federal government has no right to force individuals to have health insurance -- a central provision of the new healthcare law.

"By imposing such a mandate, the act exceeds the powers of the United States under Article I of the Constitution," according to the suit from the 13 states.

But this week, Obama administration lawyers pointed to Scalia's opinion as supporting the constitutionality of broad federal regulation of health insurance, and most legal experts agreed.

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The case demonstrates the challenge that opponents of the mandate must overcome. They are bucking a powerful trend that has been in place since the late 1930s. The AGs better get ready to argue why their case is different.