ACA: Judge Sutton's Opinion Deserves A Closer Look

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The Bush appointee and former clerk to Justice Scalia surprisingly rules in favor of the health care law- but is his opinion as liberal as it appears?

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No matter where you stand on the Patient Protection and Affordable Care Act, the man of the hour now, palpably, is 6th U.S. Circuit Judge Jeffrey Sutton, an aptly self-described "middle-management judge." The 2003 appointee of President George W. Bush, the former law clerk to United States Supreme Court Justice Antonin Scalia, surprised some in the legal world Wednesday when he broke ranks with his fellow conservative jurists and endorsed the constitutionality of the controversial health care law.

Judge Sutton's opinion, which spanned pages 27 to 53 of a 64-page ruling, broke a 1-1 tie on the three-judge panel. Like his colleague, 6th Circuit Court Judge Boyce Martin, the lone Democratic appointee on the panel, Judge Sutton ruled that the Care Act, for now anyway, represents a valid exercise of Congressional power under the Commerce Clause of the Constitution. "In my opinion," he wrote simply, "the government has the better of the arguments."

The resulting decision is the first of four federal appeals court rulings we will see this summer on the Affordable Care Act and it marks a significant victory for the Obama Administration and other supporters of the health care measure. But few will remember Judge Sutton's ruling or rationale a year or so from now when the Supreme Court finally ends the furious debate with a ruling of its own. So, before this life-tenured jurist recedes back into obscurity, let's take a closer look at what he's just done.

"In my opinion," he wrote simply, "the government has the better of the arguments."

On many levels, the judge offered up a remarkable piece of judicial writing. Despite the ultimate conclusion he reached, the opinion was both legally cautious and politically deft-- and far from what reasonable people would consider "liberal." It both covered a lot of bases in the law and also covered Judge Sutton's ass for the inevitable appeal. In fact, the judge offered up so many exceptions, conditions, and limitations upon his approval of the statute that at times his text read like a diplomat's speech.

Let's start at the beginning. First, Judge Sutton rejected the government's late-blooming argument that the Care Act's "individual mandate" could be a valid exercise of Congress's vast constitutional power to levy taxes. "The individual mandate is a regulatory penalty, not a revenue-raising tax," the judge wrote, for several reasons, not the least of which is that this "is what Congress said. It called the sanction for failing to obtain medical insurance a 'penalty' not a 'tax.' Words matter, and it is fair to assume that Congress knows the difference between a tax and a penalty."

Next, Judge Sutton reminded readers (and the High Court) that the case presented a broad "facial" challenge to the Care Act. This means that the applicable legal test, for the judge and his colleagues, was to determine whether the law on its face was unconstitutional (i.e. unconstitutional in all cases to all people) as opposed to unconstitutional only when applied to certain people in certain circumstances. Throughout the rest of his ruling, in fact, the judge emphasized that there very well might be such a circumstance in which an individual could successfully contest the mandate in court. On page 52, for example, he wrote:

For now, whatever else may be said about plaintiffs' activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications.

Hardly a sweeping progressive endorsement. And there was more where that came from. Judge Sutton next attacked the core of the dispute-- whether Congress could force people to buy health insurance-- by noting that the term "mandate" was, itself, rather underinclusive. "Faced with $43 billion in uncompensated care," he wrote, "Congress reasonably could require all covered individuals to pay for health care now that money would be available later to pay for all care as the need arises. 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."

Then, Judge Sutton tackled the question of whether Congress could regulate what critics of the Affordable Care Act call "inaction"-- the individual choice not to participate in the nation's health insurance market. He framed the issue in a way that left blatant and unmistakable his acknowledgement (and acceptance) that while he may have gotten the first say on the statute but certainly won't have the last. Judge Sutton wrote:

The plaintiffs thus present (1) a theory of constitutional invalidity that the Court has never considered before, (2) a legislative line that Congress has never crossed before, and (3) a theory of commerce power that has the potential to succeed whether others have failed: by placing a categorical cap on congressional power. Why not accept the invitation?

Why not, indeed. So the judge then proceeded to explain that (1) "... the Supreme Court has considerable discretion in resolving this dispute" while "lower court judges" do not, (2) just because Congress may have pushed the envelope with the health care law didn't necessarily make the law unconstitutional because "the substantial-effects doctrine invites, rather than discourages, unconventional laws," and (3) there is no "action/inaction dichotomy" that limits congressional power because "inaction is action" (my emphasis).

The judge then addressed in great detail why he thought the "action/inaction" framework was particularly inapt for the facial challenge in the case. He asked a series of hypothetical questions, each designed to flesh out the contours and future legal ramifications of the health care law. For example, he asked: "What of individuals who voluntarily purchased bare-bones insurance before the mandate's effective date-- catastrophic-care insurance or high-deductible insurance-- but are required by the minimum-essential-coverage provision to obtain more insurance? The action/inaction line means nothing to them..."

Then, he speculated: "Congress also would have acted within its commerce power had it opted to regulate insurance at the point of sale.... The legislature could have said that when non-exempt individuals obtain health care, they are put to a choice: either pay for the care or buy medical insurance from then on.... Yet such a law would be at least as coercive as the individual mandate, and arguably more so... The Act does not regulate individuals at a time of crisis." Sure doesn't read like liberal pablum to me.

Finally, the judge summed up the tepid nature of his endorsement of the Care Act."[E]ven if the Constitution prohibited Congress from regulating all of the self-insured together," he wrote, "that would not require a court to invalidate the individual mandate in its entirety. It would show only that the the law may be unconstitutional as applied to some individuals, not to all of them, and that suffices to defeat a facial challenge." You can't help but get the feeling that there are plenty of future Care Act plaintiffs out there who might prevail before Judge Sutton, despite this ruling, if they ever get another case before him.

Judge Sutton gave the Obama Administration a victory and his vote-- which he knows can be overturned by his former boss and mentor, Justice Scalia, and four other members of the Court. At the same time, however, he gave critics of the Affordable Care Act plenty of encouragement for the future of litigation over the measure. You can't fairly say he was all things to all people-- the folks who cry "Obamacare" would have wanted Judge Sutton to rule their way-- but you can fairly say this judge is no conservative turncoat. Instead, I would call him shrewd.

Image: REUTERS/Larry Downing

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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