Potent Support for the Affordable Care Act Mandate From an Improbable Source

June 30, 2011
Guest Post

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.

But Sutton’s endorsement of the commerce clause case for the constitutionality of the mandate differs significantly, if subtly, from that of Judge Martin and the three Democratic district judges who have voted to uphold it.  He focuses on an esoteric point – one that might resonate with judges from his side of the political aisle.  Even if, he argues, one accepts opponents’ claim that the mandate is invalid because it applies to “inactivity” and requires individuals to engage in commerce, rather than “regulating” it, there are many circumstances in which individuals subject to the mandate would be “active” under the opponents’ definition.  Hence, courts should not rule the provision invalid on its face, as the current challengers demand.  Instead, if so inclined, a conservative judge could leave the door open to future plaintiffs who could more plausibly claim that they have never used health insurance or the health care delivery system, and are continuing to refrain from any “active” steps toward future utilization.  Emphasizing the “judicial-constraint values underlying this doctrine,“ Sutton wrote, “Just as courts should refrain from needlessly pre-judging the invalidity of a law’s many applications, they should refrain from doing the same with respect to their validity.”  This facial/ as-applied distinction struck some observers, including Lyle Denniston on Scotusblog, as a significant concession to ACA opponents.  But in practice, paltry few potential challengers could claim the robust health and even more robust finances needed to wall themselves off permanently from the nation’s health insurance and delivery systems. 

While Sutton thus concludes that the challengers’ attack on the mandate fails even if their activity/ inactivity legal theory holds up, he goes on to surgically remove every support they have devised for that theory:

  • He shows that in fact the mandate is not regulating “inactivity.”  It regulates individuals’ decisions to “self-insure,” and adds that “the decisions and actions of the self-insured substantially affect interstate commerce.”
  • Continuing in this vein, he observes that “inaction is action, . . . when it comes to [managing] financial risk,” and, specifically, that self-insuring, “if done responsibly,” requires “more action (affirmatively saving money on a regular basis) than [buying insurance] (writing a check once or twice or never writing one at all if the employer withholds the premiums”).
  • Further: “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.” 
  • He shows that this law is actually a more modest application of Congress’ Commerce Clause authority than applications of other laws that the Supreme Court has upheld – laws which regulated “the most self-sufficient of individuals – the American farmer – when he grew wheat . . . for his family farm,” and “Angel Raich when she grew marijuana . . . for self-medication.”  If the Commerce Clause reaches that far, “it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”
  • He summarily distinguishes the only post-1937 Supreme Court precedents to which the challengers can point that struck down laws as in excess of the commerce power.  “Health care and the means of paying for it are ‘quintessentially economic’ in a way that possessing guns near schools [United States v. Lopez, 1995] and domestic violence [United States v. Morrison, 2000] are not.”
  • He acknowledges – then rejects as unworkable – the suggestion of a number of conservatives that the activity/ inactivity is a “plausible” line to draw to ensure that there is some “categorical” limit to Congress’ otherwise unlimited power to regulate matters that “substantially affect” commerce.  Sutton points out that the line blurs even as applied to the plaintiffs in this case, one of whom actually has insurance, but asserts that the Constitution prevents Congress from requiring her to maintain it. 
  • He specifically rejects the theory proposed by libertarian academics Gary Lawson and Randy Barnett that the mandate may be “necessary” but nevertheless invalid because it is not “proper” as required by the Necessary and Proper Clause.  Because federal law requires hospitals to treat uninsured patients who cannot afford to pay, Sutton writes, it cannot be “improper” for Congress to “regulate that benefit,” by requiring advance payment by those who can afford it. 
  • Similarly, Sutton dispatches Barnett’s recent suggestion that the mandate “commandeers” individuals in violation of the Tenth Amendment, just as two of the Supreme Court’s 1990s “federalism” decisions invalidated federal laws that “commandeered” state governments without giving them an opt-out alternative.  Sutton dismisses this theory as adding “nothing new to this case,” and impossible to reconcile with the Constitution’s grant to Congress of the taxing power, “which regularly commandeers individuals – in equally coercive ways – to spend money on things they may not need and to support policies they do not like.”
  • Sutton inflicts damage, not only on ACA opponents’ legal case, but on their moral and political case as well.  He acknowledges the “lingering intuition – shared by most Americans, I suspect – that Congress should not be able to compel citizens to buy products they do not want.”  But this intuition, he says, is not “matched with a textual and enforceable theory of constitutional limits.”  Most telling, the intuition that this mandate is uniquely destructive of individual liberty is in fact baseless, because opponents concede that Congress “could pass an equally coercive law under its taxing power” to incentivize the purchase of health insurance, and that state governments can and have mandated such purchases.  “Sometimes,” Sutton concludes, “an intuition is just an intuition.” (Emphasis added)

Sutton repeatedly emphasizes that “we at the court of appeals are not just fallible but utterly non-final,” and that, while “existing precedents support the government,” the Supreme Court, unlike his court, could overturn or revise those precedents.   But the substance and tenor of his top-to-bottom assault on the challengers’ case make clear that he does not recommend that the Court change the law, at least not in this particular case.  (Several of Sutton’s multiple thrusts are original or styled more pointedly – and compellingly – than previous efforts by ACA proponents.) 

Most intriguing, he closes with a prudential, history-based caveat to his conservative comrades on the high court: “Any remaining doubt about rejecting this facial challenge is alleviated by the most enduring lesson of McCulloch [McCulloch v. Maryland, the iconic 1819 decision by Chief Justice John Marshall that broadly construed the Commerce and Necessary and Proper Clauses and held Congress had the power to create a National Bank].”  That lesson is that, after “the Supreme Court erred on the side of allowing the political branches to resolve the conflict [over whether to have a national bank],” the anti-bank forces prevailed and prevented Congress from renewing its charter.  Sutton acknowledges conservatives’ passionate view that the current health reform struggle is “no less stirring, no less essential to the appropriate role of the National Government [than the national bank controversy].  However, he notes, it is likewise “no less capable of political resolution.”   Stroking every chord of the traditional conservative judicial restraint catechism, he concludes:

Time will assuredly bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility. 

The Supreme Court may or may not buy Judge Sutton’s warning not to trade old-style judicial conservatism for the new libertarian activist model.  But ACA proponents could never have anticipated that such a recommendation would be made so effectively, or by so credible a source. 

[image via U.S. Court of Appeals for the Sixth Circuit]