The Tension Between Scalia's Philosophy and His ACA Dissent

Stare decisis, or determining litigation according to precedent, is an idea that Scalia holds as part of his legal

philosophy. This creates a problem for the joint dissent he endorsed in the National Federation of Independent

Business v Sebelius, the case that upheld the individual mandate of the Affordable Care Act. The individual

mandate required all individuals to purchase healthcare. If they did not, they would be required to pay a tax

penalty. I will focus here on the tension between Scalia's refutation of Ginsburg’s commerce clause argument

and his support of stare decisis.


Ginsburg invokes the commerce clause, which gives the government the power to regulate commerce. She

uses the precedent established by Wickard v Filburn (1942) and similar cases, which interpreted the commerce

clause to give the government the power to regulate actions that affect interstate commerce. In Wickard, the court

upheld that the government had the power to regulate the amount of wheat a farmer grew even if he did not plan to

sell the wheat on the open market. In short, this is because the action of growing his own wheat would mean he

would not have to purchase wheat on the open market, impacting the price of wheat. This change in price would

impact interstate commerce. Ginsburg argues that this precedent gives the government the power to require

individuals to purchase health insurance as a failure to purchase health insurance would impact the healthcare

market, which is interstate commerce.


In its refutation of this point, the Scalia-endorsed dissent refutes Ginsburg’s interpretation of the commerce clause.

The opinion argues that applying the commerce clause to interactions that impact interstate commerce makes the

scope of the commerce clause too broad. This refutes the interpretation established by Wickard and similar cases.

In other words, it refutes precedent. But, it does not explicitly admit to it. This is intentional. A refutation of precedent

would break from Scalia’s established philosophy. 


Out of the four dissenting justices, only Clarence Thomas was willing to take an explicit stance against precedent. In a brief dissent, he wrote that the 20th Century interpretation of the commerce clause is “inconsistent with the original understanding of Congress's powers and with this Court's early Commerce Clause cases.” This is problematic in that it still relies on the early precedent of the court, but this may be because Justice Thomas believes the early cases were determined in accordance with the original understanding of the Commerce Clause. If granted that charitable interpretation, Thomas provides the only coherent dissent as he is the only justice willing to explicitly reject the court’s established precedent.

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