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At the district court level, rulings on the Affordable Care Act were regrettably partisan: two judges nominated by Republican presidents ruled against the law; three judges nominated by Democratic presidents did the opposite.
At the appellate level, this dynamic is not holding up. At the 6th Circuit, Judge Jeffrey Sutton, a nominee of George W. Bush, was expected to be a key ally of the right in undermining the law. He did the opposite, ruling in its favor.
Today, at the 11th Circuit, a conservative Clinton nominee, Judge Frank Hull, agreed that the individual mandate is unconstitutional, while a Reagan nominee, Judge Stanley Marcus, wrote a stinging, bordering on furious, dissent (pdf).
Court rulings don’t generally make for easy reading, but Marcus’ blistering response to today’s ruling is pretty entertaining. Note how he accuses his colleagues of judicial activism in ruling against the ACA’s mandate provision:
“Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly. This approach ignores the wide regulatory latitude afforded to Congress, under its Commerce Clause power, to address what in its view are substantial problems, and it misapprehends the role of a reviewing court. As nonelected judicial officers, we are not afforded the opportunity to rewrite statutes we don’t like.”
The majority’s ruling emphasized that health care has “traditionally” been a state matter, and used this reasoning to rule against the mandate. Marcus didn’t care for this, either.
“It would surely come as a great shock to Congress, or, for that matter, to the 47.5 million people covered by Medicare, the 44.8 million people covered by Medicaid, and the overwhelming number of employers, health insurers, and health care providers regulated by ERISA, COBRA, and HIPAA, to learn that, because the health care industry also ‘falls within the sphere of traditional state regulation,’ Congress was somehow skating on thin constitutional ice when it enacted these laws.”
But I laughed out loud when Marcus responded to the majority’s argument that the mandate is constitutionally impermissible because it’s never been done before.
“In the course of its opinion, the majority also attaches great significance to the unprecedented nature of the legislation before us. It is surely true that, as the district court concluded, the individual mandate is a novel exercise of Congress’ Commerce Clause power. But the mere fact of its novelty does not yield its unconstitutionality. […]
Every new proposal is in some way unprecedented before it is tried. And to draw the line against any new congressional enactment simply because of its novelty ignores the lessons found in the Supreme Court’s Commerce Clause cases.”
Here’s hoping Justice Kennedy, at a minimum, takes note.
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max on August 12, 2011 2:46 PM:
The dissent was excellent and entertaining. We still have judges who can think like humans instead of legal robots with an agenda. For some reason it reminded me of Justice Alito's comment during an absurd round of questions from Justice Scalia during the case involving a state law regulating the sale of violent video games to minors. Scalia was leading his usual pro-business jihad when Alito quipped, "I think Justice Scalia wants to know what James Madison thought of video games".
dr. bloor on August 12, 2011 3:14 PM:
Here’s hoping Justice Kennedy, at a minimum, takes note.
It's never been a matter of not "taking note," not paying attention or not understanding established law with the thugs that run the SCOTUS. It's always been about shaping the nation to conform to their old, white, big business prejudices, and they don't care a whit if their intellectual dishonesty is obvious when they do so.
CDW on August 12, 2011 3:15 PM:
You have to remember, Steve, that Reagan, and by extension, his nominees are bordering on Socialists by today's standards.
SadOldVet on August 12, 2011 3:28 PM:
The Individual Mandate is NOT a novel idea that has never been done before!!!!
In 1798, our 2nd president and a founding father, John Adams, signed into law An Act for the Relief of Sick and Disabled Seamen. This federal law was passed by the 5th Congress composed almost entirely of our revolutionary founding fathers. It mandated that privately employeed sailors purchase health care insurance and it established the first payroll deduction requirement with fines for employers who did not participate!
Why the f*ck would federal judges insist that there is no precedent for mandatory participation in a federal health care system? Why the f*ck are all of these strict constitutionalists allowed to disregard the actual history of the actions of our founding fathers?
Joe Friday on August 12, 2011 3:34 PM:
Judge Stanley Marcus: "Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly. This approach ignores the wide regulatory latitude afforded to Congress, under its Commerce Clause power, to address what in its view are substantial problems, and it misapprehends the role of a reviewing court. As nonelected judicial officers, we are not afforded the opportunity to rewrite statutes we don't like."
What a REFRESHING perspective.
CRhetts on August 12, 2011 3:48 PM:
Interestingly, this controversy over the limits of The Commerce Clause has already been played out in the Supreme Court, in 2005, via "Gonzales vrs Raich". Even more interestingly, although Clarence Thomas seemed to favor strict limitations on the CC, Scalia ruled in favor of a broader interpretation.
The Wikipedia article on this case links to the written opinions - which make fascinating reading. One wonders if Scalia's ruling was based on principle or politics - since it was at the time the Bush Administration's interpretation which was at issue.
Scalia wrote:
"Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective."
And, since the Administration's argument is that the Individual mandate was enacted precisely for this purpose, this should put Scalia on the side of the AFA.
I guess we'll find which side Scalia comes down on (politics or principle) as soon as this thing gets to the SCOTUS. In any event, if he rules against, it will be interesting to see how he justifies it in view of his opinion on Raich...
OKDem on August 12, 2011 4:02 PM:
Before everyone gets too worked up, remember that the 6th Ciruit 3 judge panel ruled the opposite, that this 11th panel has ruled that everything that costs insurers IS constitutional, and that the luck of the pick makes a reversal by the full 11th circuit very likely and a reversal of the 6th circuit panel by the whole circuit very unlikely.
The MSM will have a hissy fit and dump twice the ink on this ruling than the 6th but that is merely their ignorance and whoring after ratings.
Everyone assumes Scalia and Roberts will rule against ACA but I would content they will only do so if they overturn the whole act. If they can only get 5 votes for the mandate alone, their corporatist attitude will require they protect insurers by ruling the mandate constitutional.
In this line of reasoning, the 11th ciruuit panel over ruling of the serviceable portion of the lower court's ruling was more important.
Tom In MA on August 12, 2011 4:02 PM:
Medicare, which depends on traditional taxing and spending powers, is of unquestioned constitutionality. If the ACA is declared unconstitutional, then Medicare for All would be a perfect way to achieve universal coverage, would it not?
JP on August 12, 2011 4:10 PM:
To be fair, and I think this needs to be pointed out, Judge Marcus was actually nominated by Clinton for his position on the Eleventh Circuit. Although he was appointed to the Southern District of Florida by Reagan, it was Clinton who put him on the appellate court.
I point this out not because the post is egregiously wrong (it's technically correct, although somewhat misleading), but rather to point out that we -- democrats/progressives, whatever you want to call us -- should push our elected officials MUCH harder on this issue. The conservatives have stuffed the federal bench with right-wing judges for the last 30 years, and Clinton/Obama simply haven't responded in kind (http://www.lawyersgunsmoneyblog.com/2011/08/where-are-all-the-young-liberal-judges). On days like today, we're reminded why this is so very important.
efgoldman on August 12, 2011 4:47 PM:
Would have been better if you'd told us the page number for the dissent, Steve.
Three-hundred-four fucking pages!
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