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."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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