Wednesday, June 29, 2011

Digging deeper into Judge Sutton's opinion

Again, the critical piece to today's decision--both legally and politically--is Judge Jeffrey Sutton's opinion on the constitutionality of the individual mandate. Legally because, as the narrower rationale for the judgment, it is effectively the opinion for the court. And politically because Judge Sutton is, by reputation, a states-rights Republican, a former Scalia clerk with conservative bona fides, and a wickedly smart and widely respected judge. (He was, in my view, quite impressive at oral argument--indeed, the single most impressive of all the court of appeals judges sitting in the ACA cases.)

There are a number of noteworthy aspects to Judge Sutton's opinion. One is that it rather resolutely rejects the government's taxing power argument. Another is that it finds the standard of Salerno applicable--even though this is an enumerated powers question--and proceeds to ask whether there are any constitutional applications of the mandate.

But there are three points in particular that stand above the rest, and that are hugely helpful to to the United States--not the least because they are articulated by Judge Sutton:

* The Commerce Clause does not "contain an action/inaction dichotomy that limits congressional power." (P.43). Obviously, this conclusion is of enormous significance, for the essence of the challenge to the mandate is that it regulates inaction, and Congress has no authority to reach inaction under its power to regulate interstate commerce. In a lengthy discussion (pp.43-50), Judge Sutton explains why he believes there is no such limitation in the Constitution.

* There is no meaningful constitutional difference between (a) requiring individuals, at the point they seek health care, to demonstrate an ability to pay through insurance coverage, and (b) forcing individuals, before that acute need arises, to obtain such coverage. "Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind, and not the sort of policy differences removed from the political branches by the word 'proper' or for that matter 'necessary' or 'regulate' or 'commerce.'" (Pp.49-50). Because everyone concedes that Congress can regulate the terms of the economic or commercial activity of obtaining health care, then it follows that Congress can, ex ante, require "insurance today."

* Health insurance is unlike most (if not all) other commercial products, such that upholding a mandate to acquire it would not empower Congress to force people to fill-in-the-blank (eat broccoli, join health clubs, buy GM cars, etc.). "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. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them." (P.51).

Again, Judge Sutton is careful to note that he is only rejecting a pre-enforcement, facial challenge to the minimum coverage provision. But given these three points--combined with other language in his opinion concerning Congress's leeway to define the regulated class in a reasonable (if imperfect) fashion--it is difficult to see how an as-applied challenge could plausibly succeed. These three points (if accepted) largely eviscerate any plausible challenge to the mandate, no matter the person's individual circumstances.

In other words, the decision today looks like a facial validation of the ACA in all of its applications, de facto if not de jure.