Have We Already Forgotten what the Health Care Case Said?Michael Ramsey

Noah Feldman (Harvard Law School) has an essay at Bloomberg titled Gay Marriage and Marijuana Are Coming to the Court with this notable paragraph:

In 2005, in Gonzales v. Raich, the Supreme Court held that Congress could make it a crime to use medical marijuana even when the drug was home-grown by the user, was not sold, and did not move in interstate commerce. The key precedent was the 1942 case of Wickard v. Filburn, which presented almost the same facts and reached the same conclusion regarding the production of wheat for home use. (Wickard was also the central case cited by Chief Justice John Roberts when he cast the deciding vote to uphold the Affordable Care Act last June. As much as conservative justices might regret Raich, there is no way Roberts would undercut his controversial vote to accommodate potheads.)

Look at that parenthetical closely.  Surely anyone who's paying attention knows that (a) Wickard was a commerce clause case; (b) in the health care case (NFIB v. Sebelius) Chief Justice Roberts voted to uphold the Affordable Care Act's individual mandate under the federal government's taxing power, not the commerce power; and (c) Roberts joined Justices Scalia, Kennedy, Thomas and Alito to say that Congress did not have power to enact the individual mandate under the commerce clause.

A quick look at Sebelius confirms that, in fact, Roberts (naturally) did not even cite Wickard (much less make it the "central case cited") in the section of his opinion upholding the Affordable Care Act under the taxing power (Section III.B).  Roberts did cite and discuss Wickard in his commerce clause analysis (Section III.A), but that was to distinguish it and to refuse to uphold the Act on the strength of Wickard.  In sum, Professor Feldman's suggestion that Roberts upheld the Affordable Care Act under Wickard is flatly wrong.

Is that significant?  Of course, it's most likely just a simple error, as we all make.  But perhaps it's an error suggestive of something broader.  In an important recent article, Lawrence Solum argues that Sebelius changed the "constitutional gestalt" (as he calls it) regarding commerce clause challenges by making them more acceptable and plausible.  Perhaps this is true -- but it's true only if Sebelius is recognized as a holding that the Affordable Care Act exceeded Congress' power under the commerce clause.

Because Sebelius actually upheld the Act (albeit under a different power), its commerce clause conclusion maybe be forgotten, or at least obscured.  And the many commentators who dislike enumerated powers limits on the federal government have a great interest in seeing it obscured and forgotten.  I'm not suggesting Professor Feldman's mistake is deliberate, but it is convenient --and suggestive, I think, of how many people would like Sebelius to be (mis)remembered.