The majority opinion by a 6th circuit panel Wednesday upholding Obama’s health care reform law is a victory for the administration on its face. But to understand just how big a victory it is, you have to read the concurring opinion by Circuit Judge Jeffrey Sutton. Sutton, a former clerk to Supreme Court Justice Antonin Scalia and a powerful figure on the right wing of the 6th circuit, meticulously destroys the central and essential argument of the opponents of Obama’s healthcare law.
Obama’s opponents say that by requiring Americans who don’t have health insurance to buy it, the Affordable Care Act crosses a line that has never been crossed in the country’s 220-year history: compelling people to buy something they don’t want. Where the courts have upheld Congress’ right to regulate even the most private kinds of commercial actions, like growing wheat in your backyard, the law’s opponents say there’s never been a federal law requiring millions of people who aren’t doing something, like buying health insurance, to do it. Once you cross the line from regulating action to regulating inaction, the opponents ask, what’s next? Will the government require you to buy solar panels? It is a powerful rhetorical argument: The question for the courts is whether it has any relation to the Constitution.
When you read Sutton’s concurring opinion, at first it doesn’t look as if he intends to defend the law’s constitutionality particularly strongly. For starters, he rejects the administration’s back-up argument: that the penalty for not buying insurance effectively makes it a tax, and so part of Congress’ unchallenged power to raise revenues. And he spends time pointing out the ways the Supreme Court could knock down the law that the circuits can’t, thanks to the top court’s ability to set limits on previous decisions.
But then he launches into a 21-page proof that the Constitution doesn’t limit Congress power to regulate inaction the same way it regulates action. First, he says, “the relevant text of the Constitution does not contain such a limitation.” Second, distinguishing between inaction and action under the healthcare law is harder than it seems. What if someone previously had healthcare and then dropped it so he could free-ride on the system? Under the plaintiff’s own argument, it would be constitutional to make him buy healthcare because he had already “entered the stream of commerce”. Third, precedent exists for regulating people who aren’t actively participating in a market: one of them, a case outlawing growing marijuana for personal use, was written by Scalia. Fourth, everyone agrees Congress could force someone to buy health insurance the moment they seek care at an emergency room because they would then be entering the market; “Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind,” says Sutton. Fifth, the breadth of the challenge to the law means that some cases where it might be constitutional would be thrown out with others that the opponents say are unconstitutional: better to let the law go forward and have the individual cases come up rather than issue a broad opinion that overstates a constitutional limit. Sixth, Sutton argues, the 10th amendment protection of state and personal power doesn’t overrule Congress’ enumerated power under the commerce clause.
For non-lawyers, though, the politically powerful intuition remains: Congress should not be able to compel citizens to buy products they do not want. Sutton asks rhetorically, “If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership…? And if Congress can do this in the healthcare field, what of other fields of commerce and other products?”
“These are good questions,” he says, “But there are some answers.” First, healthcare is unique. “Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law.” Second, health insurance mandates exist at the State level, Sutton says, “Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution. That means one of two things: either compelled purchases of medical insurance are different from compelled purchases of other goods and services, or the States, even under plaintiffs’ theory of the case, may compel purchases of insurance, vegetables, cars and so on. Sometimes an intuition is just an intuition.”
The Supreme Court can, and often does, blow straight past such thorough arguments from lower courts, whether on the right or the left. But Sutton’s opinion provides cover for other conservative circuit judges, and Supreme Court justices, who believe Congress has clear authority to regulate healthcare on the national level and that Obama’s healthcare law is therefore constitutional.