6th Circuit Rattles the Right
In the highly-partisan political and legal battle over implementation of the Affordable Care Act, the US Circuit Court of Appeals for the Sixth Circuit offered America a glimmer of reason yesterday. A three-judge panel delivered a 2-1 ruling upholding the constitutionality of the individual mandate, or the requirement that everyone who can afford insurance must obtain it by 2014 or pay a penalty.
Shaking up partisanship: a win for legal objectivity The majority opinion in Thomas More Law Center v. Obama caused a small earthquake in conservative blocs as Republican-appointed Judge Jeffrey Sutton joined with his Democrat-appointed colleague Judge Boyce Martin to affirm the legality of the individual mandate. While no hand-holding was sighted, the decision’s sweet smell of non-partisanship was a welcome surprise.
For supporters of the Affordable Care Act (ACA), the verdict is a resounding victory. Meanwhile opponents of health care coverage for all Americans are dismissing the verdict simply as “wrong” and irrelevant. However, it is relevant and here is why: Judge Sutton’s affirmation of the individual mandate specifically and the ACA generally shows that there is living space above partisan politics.
While this suit is one of a handful of candidates likely to end up before the Supreme Court (4th Circuit/ Virginia and 11th Circuit/ Florida are both awaiting decisions), yesterday’s 6th Circuit decision may offer a blueprint for winning conservative support for the individual mandate. Its author, Sutton, is a respected conservative Judge who formerly clerked for Supreme Court Justice Antonin Scalia.
What is in the decision? There are many key take-aways from Wednesday’s ruling; however, the most important is how Judge Sutton unravels the issue of economic “activity.”
The lawsuit’s plaintiffs asked the court to determine if a person who declines to purchase health insurance and opts to self-insure is engaging in an “economic activity.” This is an important legal question because the Commerce Clause grants the federal government authority to regulate economic activity if it substantially affects interstate commerce.
Sutton meticulously dissects the activity question: “no one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.” Everyone is an active participant in the health care economy and therefore, the federal government has the authority to regulate this activity, such as by requiring all Americans to have some minimum level of health insurance coverage.
Finally, Sutton’s opinion clearly states that the individual mandate passes constitutional muster – even for those who do not like the idea, “Call this mandate what you will—an affront to individual autonomy or an imperative of national health care—it meets the requirement of regulating activities that substantially affect interstate commerce.” The decision is a reminder to all of those who attempt to stand in the way of implementation that the Constitution may not be available as their personal road block.
What comes next? The plaintiffs in the 6th Circuit case have two options – they can ask the 6th Circuit for a full panel of nine judges to review the decision (called a review en banc), or they can appeal their loss to the Supreme Court. In the interim, we await two other rulings out of the 4th and 11th Circuits. Legal analysts still believe, despite the ruling Wednesday, that the 11th circuit case is more likely to end up in the Supreme Court. However, most legal analysts agree that a case will be on the Supreme Court docket next term, which would likely result in a decision by June of 2012. Yet there are optimists who believe that a series of decisions similar to that of the 6th Circuit would keep the case from ever reaching the high court – hope springs eternal.
— Eva Marie Stahl, Policy Analyst