On June 29, 2011, the first federal court of appeals to rule on the constitutionality of the Affordable Care Act, otherwise known as “Obamacare,” upheld the law by a vote of 2-1. Two more appellate court decisions are expected soon, and then the Supreme Court will have the final say. But the decision of the U.S. Court of Appeals for the Sixth Circuit is the most important to date, and may be a bellwether for the law’s eventual fate. Much as I argued in The New York Review, the two judges in the majority concluded that prior Supreme Court precedents clearly support Congress’s broad power under the Commerce Clause to ensure the functioning of its health care insurance reform law by requiring those who can afford insurance to buy it.
But more significant than the judges’ reasoning is the judge who cast the deciding vote – Judge Jeffrey Sutton. Had those challenging the law been asked to name their “dream judge” for this appeal, they would almost certainly have named Sutton. It’s not only that he is a Republican, a former law clerk to Justice Antonin Scalia, an appointee of President George W. Bush, and an active member of the Federalist Society. Sutton made his name litigating for states’ rights. As Ohio State Solicitor and as a lawyer in private practice, Sutton appeared repeatedly in the Supreme Court arguing for expansive views of states’ rights. He won the case that held that Congress could not apply the Age Discrimination Act to state employers, because it interfered with state sovereign prerogatives. He wrote an amicus brief arguing successfully that Congress lacked the power to enact the Violence Against Women Act, again because such legislation must be left to the states. From the mid-1990s until he was nominated to the Sixth Circuit, Sutton was the go-to guy on state’s rights among Supreme Court advocates. As he told the Legal Times in an interview, “I love these issues. I really believe in this federalism.”
So who could be more predisposed to favor the Affordable Care Act challengers’ claim that Congress impermissibly intruded on the states’ legislative domain by requiring individuals to buy health care insurance? Yet while Sutton sympathetically described the claimant’s challenge – their lawyers, after all, are among his closest political and legal friends – he concluded that the purchase of health insurance is a proper subject of federal regulation, and not a matter exclusively for the states. He noted that the Court had previously ruled that under its power to regulate “interstate commerce,”Congress could limit a farmer’s right to grow wheat for his own consumption, and could prohibit the growing of marijuana for personal medicinal use, on the theory that such actions, when aggregated, affect interstate commerce. Sutton reasoned that the decision not to buy health insurance and thereby to impose one’s future health care costs on others, which led to $43 billion in uncompensated care in 2008 alone, has an even more dramatic effect on interstate commerce, and so should be regulated by Congress.
Furthermore, Judge Sutton systematically demolished the fundamental premise of the challengers’ argument – that while Congress can regulate economic “activity” under the Commerce Clause, it cannot regulate “inactivity”—the choice not to buy insurance.
Sutton set forth six separate reasons for why the purported distinction between “inaction” and “action” is not a coherent demarcation of Congress’s power to regulate commerce. Among them, he noted, is the fact that Congress has the authority to prescribe as well as to proscribe, and both forms of regulation can apply to “inaction.” Thus, Congress can require former sex offenders to register, and can compel those who possess drugs to dispose of them if Congress makes them illegal, even though both forms of regulation might be characterized as requiring people engaged in “inaction” to act. More importantly, he noted, “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”
The significance of Sutton’s opinion cannot be underestimated. Until now, with one important exception – Harvard Law professor Charles Fried, former solicitor general under President Reagan, who told a Senate committee in February that the law was plainly constitutional — reaction to the health care law has been divided along partisan lines, in Congress, the courts, and the public at large. Two Republican judges have declared the law unconstitutional. Several Democratic judges have upheld it. The fact that Judge Sutton, a Republican, a Federalist, and perhaps the nation’s leading states’ rights advocate, was singularly unimpressed by the challengers’ principal argument should be cause for relief among those who support the law – and should send tremors through the ranks of those who thought they could use the label of “states’ rights” to defeat the law in the courts.