By Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, author of two ACS issue briefs on the constitutionality of the Affordable Care Act’s individual responsibility provision, or “individual mandate,” and a frequent contributor to this blog and other blogs and periodicals. Lazarus’s ACS Issue Briefs are available here and here.
As the various health reform legal challenges have proceeded through lower federal courts respectively hospitable and hostile, all parties, participants, and observers have agreed that in the end, the Supreme Court will resolve the fate of the Affordable Care Act’s (ACA) individual mandate to carry health insurance, paying little heed to the conflicting opinions of lower court judges. But that assumption may need to be revisited, in light of Sixth Circuit Judge Jeffrey Sutton’s decision to join Carter appointee Boyce Martin in yesterday’s 2-1 ruling upholding the constitutionality of the ACA mandate. It is just possible that Sutton’s 27-page opinion could be one to which members of the high court’s conservative bloc will give serious attention.
In part, that’s because of who Sutton (pictured) is. Not only is he the conservative justices’ philosophical kin. More important, he is their intellectual peer. As noted on the conservative Volokh Conspiracy blog by Orin Kerr, “Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular ‘feeder’ judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate.”
But more important than the pedigree of the author of this opinion is its content. Of the – so far – four opinions upholding the mandate (by three district judges and by Judge Martin in the same case) Sutton’s methodical and bombast-free analysis is the most comprehensive in dissecting the issues raised by all the arguments devised by ACA opponents.
Strategically, Sutton frames his argument as a right-leaning legal and policy wonk speaking to a Federalist Society conference, or a meeting with like-minded jurists. In addition, Sutton acknowledges throughout that he is but a “middle-management judge,” respectfully mindful that his superiors on the Supreme Court will have the last word. The argument clearly recognizes that, at bottom, this litigation is the latest phase of a fierce three decade-old war between two schools of conservative constitutionalism: on the one hand, the long dominant mainstream conservative vision celebrating judicial restraint, respect for precedent, and deference to elected decision-makers; on the other, libertarian anti-government activism, which had been confined to a small cadre of fervent but marginalized enthusiasts until 2010, when the tea party mobilized and opposition to ACA became Republican Party orthodoxy. In light of his own history as a fervent promoter of a states’ rights-oriented concept of “federalism,” Sutton would have surprised no one had he gone with the new flow and come down hard against the mandate. Instead, his opinion is an unambiguous recommendation to traditional conservatives, specifically, Justices Scalia, Kennedy, and Roberts, to stick to their knitting and leave this explosive policy debate to legislators and voters.
Sutton’s bottom-line holding that the Commerce and Necessary and Proper clauses authorize the mandate closely resembles his Democratic colleague Judge Martin’s opinion; indeed, prominent libertarian ACA opponent Ilya Somin (who has twice appeared on ACS panels) termed theirs the "Martin-Sutton approach" with “extremely radical implications” more “sweeping” than the three previous district court decisions favorable to the Obama administration. But unlike Martin, who held it unnecessary to reach the question whether the mandate could be justified as an exercise of Congress’ tax-and-spend authority, Sutton began his opinion by elaborately rejecting the administration’s arguments in support of that claim. Perhaps that introduction could remind readers, especially conservative readers, that the opinion’s author is no knee-jerk defender of Congressional prerogatives or the hated ACA in particular.