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Sixth Circuit Breaks Partisan Streak On ACA Rulings

Adam Serwer | Jun 29, 2011

Decisions on the constitutionality of the Affordable Care Act's individual mandate have fallen along partisan lines, with Republican appointees voting to overturn it and Democratic appointees upholding it.

Until today. A three judge panel made up of two Republican nominees, Judges James L. Graham and Jeffery Sutton--one appointed by Ronald Reagan and the other by George W. Bush--upheld the individual mandate. The opinion was written Judge Boyce Martin, who was appointed by Jimmy Carter. Martin and Sutton agreed on the constitutionality of the mandate under the Commerce Clause. While Graham said the mandate was unconstitutional, he, along with the other judges, rejected the "activity/inactivity" distinction en vogue in conservative and libertarian circles.

Martin's decision rejected the notion that going without health insurance constitutes an "inactivity" that can't be regulated under the Commerce Clause, noting that, "The uninsured cannot avoid the need for health care, and they consume over $100 billion in health care services annually." Martin adds that "Self-insuring for the cost of health care directly affects the interstate market for health care delivery and health insurance. These effects are not at all attenuated as were the links between the regulated activities and interstate commerce in Lopez and Morrison."

That last point is key, because Republican appointees concocted the "inactivity/activity" distinction as a rhetorical loophole to appeal to Justice Antonin Scalia. Scalia argued in a recent medical marijuana case that " "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." [ http://prospect.org/csnc/blogs/adam_serwer_archive?month=12&year=2010&base_name=scalias_loophole ]

Interestingly enough, despite accepting that the individual mandate is constitutional under the Commerce Clause, Sutton argues that the individual mandate is "not a tax." It's a small rhetorical concession to the right that doesn't invalidate his conclusion that when it comes to "inactivity," the "relevant text of the Constitution does not contain such a limitation."

Graham however, took a line similar to that of previous Republican appointees. Taking a ride down the slippery slope, Graham writes that "To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit," adding that "A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment."

Still, even Graham wrote of previous Commerce Clause decisions, "I do not interpret those cases as drawing a constitutional line between activity and inactivity." Not a single judge on the panel accepted the inactivity/activity distinction most frequently cited by the ACA's opponents.

This doesn't change the fact that this ruling was a substantial first--a Republican judge upheld health care reform. Opponents of the ACA thought they had this one in the bag. Shortly after oral arguments, Cato's Ilya Shapiro wrote that "here there will be at least one vote to strike down the individual mandate, and maybe even all three." [ http://www.cato-at-liberty.org/plaintiffs-should-be-cautiously-optimistic-about-latest-obamacare-appeal/ ]

That turns out to have been overly optimistic on his part.


http://prospect.org/csnc/blogs/adam_serwer_archive?month=06&year=2011&base_name=sixth_circuit_breaks_partisan