Political Animal


June 29, 2011 12:50 PM 6th Circuit finds Affordable Care Act constitutional

By Steve Benen

In another legal win for the Affordable Care Act, the 6th Circuit Court of Appeals has ruled that the Affordable Care Act is constitutional. The ruling is online here (pdf).

It is the first federal appellate bench to rule on the constitutionality of the reform law.

It’s worth appreciating the fact that the outcome today was by no means assured. The 6th Circuit is considered one of the nation’s more conservative appellate benches, and one of the judges who upheld the constitutionality of the ACA was Judge Jeffrey Sutton, a nominee of George W. Bush, and a former clerk for Supreme Court Justice Antonin Scalia. Indeed, Sutton, a Federalist Society veteran, has been described as “one of the nation’s leading advocates for conservative states-rights positions.”

Far-right activists hoped, and many assumed, Sutton would be a key ally in overturning the law. He was not. Indeed, he is the first federal judge to consider the legality of the ACA on the merits who “broke ranks” — that is, a conservative judge who sided with the Obama administration’s position.

From the ruling, of which Sutton was a part:

“By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”

The case was originally brought by a conservative legal outfit called the Thomas More Law Center, which insisted the public couldn’t be compelled to purchase insurance. The Justice Department responded, pointing not only to the Constitution’s Commerce Clause, but also to the “congressional power to tax and spend to provide for the general welfare.”

The lower court agreed with the Obama administration, and now an appeals court has done the same. It’s hard to see this as anything but a major victory for the law, the administration, and common sense.

Of course, because this is great news for Democrats, recent history suggests today’s ruling will be largely ignored.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.


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  • J on June 29, 2011 12:56 PM:

    Great thing is GWBush appointee, uber-conservative, former Scalia clerk Judge Sutton voted to hold ACA constitutional. His opinion is a little overdone in its hand-wringing, but still comes to the clearly correct result as a matter of constitutional law and Supreme Court precedent.

  • arkie on June 29, 2011 1:06 PM:

    How long will it take for Fox to figure how to spin this?

  • sinclair on June 29, 2011 1:15 PM:

    Unfortunately Supreme Court precedent has held little sway ... at the Supreme Court. Funny that.

  • J on June 29, 2011 1:24 PM:

    Steve -- a small, technical correction to your update. The block quote is actually *not* a part of the ruling that Sutton joined. He joined Judge Martin's opinion only in Parts I and II and concurred in the judgment; he wrote his own views for why the ACA is constitutional under the commerce clause. The quote you gave is technically only Judge Martin's opinion, as Sutton did not concur with or join that section of Martin's opinion.

  • Danp on June 29, 2011 1:24 PM:

    I'm not sure I understand why the Commerce Clause even comes into this discussion. Is a tax penalty for not having insurance any different than a tax penalty for not having a mortgage? Is the difference between a deduction and a penalty really that significant?

  • zeitgeist on June 29, 2011 1:29 PM:

    Danp, it comes in to play in this opinion, at least, because there were not two votes to find constitutionality under the taxing powers. Sutton held that the "penalty" was not a "tax," and presumably to avoid a rift that would threaten the outcome, Martin simply held he didn't need to reach the tax power. (it was a 2-1) decision, so Martin and Sutton had to be able to reach agreement to get this result at all).

  • bubba on June 29, 2011 1:31 PM:

    Crickets on the NYTimes and WaPo websites on this.

  • Danp on June 29, 2011 1:41 PM:

    Thanks zeitgeist.

  • square1 on June 29, 2011 1:47 PM:

    There are a couple of important points to make.

    First, just because something is constitutional, or otherwise legal, does not mean that it is a good idea. As Obama said during the primaries:

    Well, if things were that easy, I could mandate everybody buy a house, and that, you know, and that would solve, you know, the problem of homelessness. It doesn’t.

    That is as true today, as it was back when this logic convinced me to support Obama over Hillary for the nomination.

    Second, just because something complies with the Commerce Clause doesn't mean that it can't be held unconstitutional on other grounds. For example, under the Commerce Clause, Congress could legalize and regulate slavery. Of course that that would run afoul of the 15th Amendment.

    IMO, there are a couple of non-Commerce Clause arguments that the individual mandate is unconstitutional, and it is premature to assume that they won't be successfully raised in the future.

  • walt on June 29, 2011 1:57 PM:

    square 1, if things were that easy, I could compel people to buy their own air force, police department or water treatment plant. This libertarian nonsense you're spouting is on its face absurd. Even if you presume a political act to rectify human suffering punishes you personally, there's no question that it relieves society of a cost that already punishes you. Someone has to pay the high health-care costs incurred when people get ER care instead of normal medical care. Society makes these trade-offs not to inflict some Randian nervous breakdown on literalists like you but to solve real-world problems in a way only societies are equipped to do.

  • cmdicely on June 29, 2011 2:14 PM:

    IMO, there are a couple of non-Commerce Clause arguments that the individual mandate is unconstitutional,

    While the validity of arguments may be a matter of opinion, there existence (or not) is a matter of simple fact. What non-Commerce Clause arguments that the individual mandate is unconstitutional have been advanced in any of the cases challenging the mandate (since any not raised in that context are irrelevant, legally speaking.)

  • square1 on June 29, 2011 2:31 PM:

    Walt: I don't know where you got the idea that I am a libertarian.

    I apologize for some of the formatting in my comment. I intended a blockquote (and it looked fine in preview). But, to be clear, the following quote is from Barack Obama in 2008:

    "Well, if things were that easy, I could mandate everybody buy a house, and that, you know, and that would solve, you know, the problem of homelessness. It doesn't."

    Obama said that, not me.

    I generally disfavor political labels, but in today's America, I would be considered a strong liberal, if not a socialist.

    I have no problem with the government providing health care to those who can't afford it. And I am strongly in favor of the government using its power to lower health care costs even for those who can afford it.

    Give me Medicare buy-in. Give me a sui generis single-payer system. Or give me a genuine public option. Just don't give me a bullshit mandate to buy insurance from a corrupt oligopoly and then pretend it is affordable because it is partially subsidized by my own taxes. No thanks. YMMV.

  • square1 on June 29, 2011 2:51 PM:

    cmdicely: The initial, and most hysterical, constitutional challenges have come from right-wing zealots. Accordingly, their focus, legally, has been on alleged over-reaching by the government. I.e. Exceeding the scope of the Commerce Clause.

    This does not mean that there are not other, possibly more colorable legal arguments. For example, I maintain that because the individual mandate is not intended to give tax payers a legitimate alternative, but rather to compel the payment of insurance premiums, that premiums -- not the merely the penalty, but the premiums themselves -- are de facto federal taxes.

    And if the premiums are taxes, then a whole host of constitutional promblems arise, including violations of the Presentment Clause and improper delegation of Article I and Article II authority to private entities.

    The right wing zealots who are currently filing lawsuits are unlikely to argue that government just gave private corporations too much power under ACA. And liberal activists who might advance those claims are not likely to rush to the Courts. They will wait to see how the political process shakes out and only if it appears that necessary would they file lawsuits.

    So, you are correct, that such arguments are "irrelevant" in that they are not currently being advanced in any courts, to my knowledge. But they are not irrelevant to any analysis of foreseeable legal issues with ACA.