The Sixth Circuit was the first of several appeals courts to rule on the validity of Obamacare’s individual mandate, and conservatives are disappointed about Wednesday’s 2-1 decision upholding the law. They shouldn’t be.
A careful reading of the entire 64-page document shows the swing judge may in fact be inviting the U.S. Supreme Court to use the case to finally put the brakes on the seemingly unlimited expansion of federal powers under the Constitution’s Commerce Clause.
The key vote in Wednesday’s decision was Judge Jeffrey S. Sutton, a George W. Bush appointee and a former law clerk to Supreme Court Justice Antonin Scalia. He sends a very loud signal that it’s time, with this case, for the Supreme Court to reverse course.
Therefore, the celebration by those on the left who believe that this decision will give more impetus for the mandate to be upheld in other cases should put the corks back in the champagne.
The Supreme Court has allowed the Commerce Clause to be used for decades to expand the power of the federal government to reach into virtually every corner of our economy and our lives. Judge Sutton explained that lower-court judges have a “duty to respect the language and direction of the Court’s precedents.” He said it is not within the powers of any lower court to reverse those precedents. “A court of appeals cannot” move beyond these judicial precedents, he repeats. Hence his vote to uphold the law was based upon previous liberal interpretations of the Commerce Clause.
Only the Supreme Court can decide if interpretations of its previous decisions (about a farmer’s production of wheat or growing marijuana) have “outstripped the facts,” or if subsequent interpretations have made “broader and more extravagant assertions of legislative power . . . impervious to challenge,” Sutton writes.
The judge argues that “commerce power has ‘evolved over time’ in favor of greater congressional power,” but adds that this “need not invariably be the case, lest each expansion of federal power beget another, piling one inference of an unlimited national police power onto another.”
But he suggests that the health law presents the Supreme Court with the opportunity to finally put the brakes on the extravagant use of the Commerce Clause to expand federal power to unprecedented levels.
Sutton wrote: “Today’s ‘question’ about the ‘extent of the powers’ granted to Congress goes primarily to its commerce power to compel individuals to buy something they do not want (medical insurance) as part of a regulatory system that a majority of elected representatives do want (national health care). If the commerce power permits Congress to force individuals to enter whatever markets it chooses, any remaining hold on national power will evaporate.”
It sounds like an open invitation for the U.S. Supreme Court to put limits on Commerce Clause interpretations. “The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisite income to pay now rather than later for health care. . . . 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” under previous Court interpretations, Sutton wrote.
Sutton asks the crucial questions many are asking:
That brings me to the lingering intuition — shared by most Americans, I suspect — that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership? Could it require computer companies to sell medical-insurance policies in the open market in order to widen the asset pool available to pay insurance claims? And if Congress can do this in the health-care field, what of other fields of commerce and other products?
Sutton concludes that precedent in interpretation of the Commerce Clause gives Congress the power to mandate the purchase of health insurance, but adds that “nothing about this view of the case precludes individuals from bringing” future challenges to the mandate by arguing that Congress crossed a constitutional line in imposing “this unprecedented requirement.” So even a Supreme Court decision may not be the last word.
The 2-1 circuit-court decision came down over the question of the extent of “Congress’s power to regulate activities that substantially affect interstate commerce” by requiring individuals to maintain a minimum level of health coverage.
Judge Boyce F. Martin Jr., a Democratic appointee, voted to uphold the health law, along with Sutton. Judge James L. Graham, appointed by President Reagan, disagreed with their core finding about the mandate’s unconstitutionality (see below). The case, brought by the Michigan-based Thomas More Law Center, was argued June 1, and the decision was unexpectedly speedy.
The court decided that “the minimum-coverage provision regulates activity that is decidedly economic.” It concluded that people who “self-insure” — i.e., go without insurance — have an impact on interstate commerce if they require health care for which they cannot pay: “Thus, where Congress comprehensively regulates interstate economic activity, it may regulate non-economic intrastate activity if it rationally believes that, in the aggregate, the failure to do so would undermine the effectiveness of the overlying regulatory scheme.”
The court found that the law’s strict insurance regulations (guaranteed issue and community rating) require more regulation through the individual mandate in order to protect the sellers of insurance from free riders who could “undercut its overlying economic regulatory scheme.” It said “the minimum-coverage requirement is essential to its broader reforms to the national markets in health-care delivery and health insurance.”
That means the Commerce Clause is now being used to say that the Congress can insist on ever more onerous regulations to implement its previous onerous regulations. How’s that for a constitutional principle!
The court also cited evidence that is damning of the health law: “The legislative record demonstrated that the seven states that had enacted guaranteed-issue reforms without minimum-coverage provisions [an individual mandate] suffered detrimental effects to their insurance markets, such as escalating costs and insurance companies exiting the market.”
Judge Graham, the Reagan appointee, gets the last word in the opinion, saying what Sutton implied: “I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.
“If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power?” Graham asked. “The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does.
“Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment,” he concludes.
Liberals are celebrating prematurely. The Supremes will rule, and the decision that the Left perceives as a victory plants the seeds for a tectonic shift in a constitutional interpretation to limit federal powers.
Posted on National Review Online: Critical Condition, June 30, 2011.