Yesterday’s
decision by the U.S. Court of Appeals for the 6th Circuit upholding Obamacare was significant in a number of respects. It was, first of all, the first of these decisions at the appeals-court level. It seems likely that other appeals courts, taking up other versions of the Obamacare question, will reach different conclusions, and in the end the Supreme Court will have to take up the issue, perhaps in its next term. But even more significant is the fact that the 2–1 majority upholding Obamacare included Judge Jeffrey Sutton—a George W. Bush appointee, former solicitor general of Ohio, former Scalia clerk, and a prominent judicial conservative.
Sutton is very careful to note that he is trying to apply the Supreme Court’s precedents, not to decide the case as he would if he were a Supreme Court justice himself. But his opinion highlights some crucial distinctions among judicial conservatives—particularly between judges who generally emphasize originalism above all (like Justice Thomas) and those who often emphasize judicial restraint above all (like Justice Scalia)—distinctions that bear heavily on one’s understanding of the constitutionality of the individual mandate (or at least on the appropriateness of the court’s overturning it) and that are likely to be highly relevant when the Supreme Court takes up the health-care law.
In the new issue of
National Affairs, George Mason University law professor Eric Claeys
takes up exactly these distinctions and warns conservatives that, while an originalist reading of the Constitution would find the individual mandate unconstitutional, they should not be overconfident that the Supreme Court’s conservatives will all apply such a reading in this case. The piece makes for both a great primer on the constitutional issues raised by Obamacare and an enlightening classification of the various stripes of judicial conservatism. And its analysis is amply confirmed by yesterday’s decision. Well worth your while.
In the end, the case against Obamacare—including not only the case against its horrendously defective design and misguided premises about health-care economics, but also the case against it on constitutional grounds—can only really be won in the court of public opinion. Even if the Supreme Court overturns the individual mandate or the entire law, which it may very well do, it remains incumbent upon opponents of the law to argue their case to their fellow citizens and voters and to propose alternatives, not just sit back and wait to see what the courts say.
"it remains incumbent upon opponents of the law to argue their case to their fellow citizens and voters and to propose alternatives, not just sit back and wait to see what the courts say."
If there's one issue where conservatives/Republicans have done this, it's Obamacare.
Reply to this commentLinkReport AbuseIANAL, but it seems to me that if the Court says that under penalty of law, the government can make you buy health insurance, there is absolutely nothing the government can't make you buy or do all under the principle of "economic activity". Sutton (I think) applies some ridiculous rational that this is allowable if the government can demonstrate that the inactivity has some kind of "substantial" economic impact.
I'm normally loathe to use the phrase "slippery slope", but I'm not sure how else to properly describe the principle they're establishing here. If a single person's failure to buy health insurance - against the backdrop of a $3T economy - qualifies as a "substantial economic activity", then what doesn't qualify as a substantial economic activity? Not much.
The problem with American law today is that it endeavors to make the most simple, straight-forward question as complicated and murky as possible. Moreover, to me it seems like the law is now predisposed to give the government the benefit of the doubt about what it can't do, and instead looks skeptically at the arguments about why the government shouldn't be able to do it - whatever "it" is. Doesn't that stand the principles of the Founding Fathers on their head?
Rather than proving why government can't do something, the burden of proof should fall entirely on the government about why it can do something. And, that burden should be substantial, very very substantial. If that's not the way it works, then Article I, Section 8 is arguably the most meaningless section of the Constitution. The Commerce Clause will have been read so broadly that there will - as a practical matter - be virtually no limitations on what the government can compel its citizenry to do.
James Madison is weeping, and I'd wager that even Hamilton is a little sick to is his stomach.
Reply to this commentLinkReport Abuse"there is absolutely nothing the government can't make you buy or do all under the principle of "economic activity"."
We're already at that point - the Supreme Court has found that federal marijuana laws apply to people who grow their own pot for personal use, never sell it, never buy from anyone else. If that's federally regulatable economic activity, anything is. I didn't hear too many conservatives crying about that case, though (Sutton, by the way, cites it as one of his justifications for upholding the mandate).
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Reply to this commentLinkReport Abuse>"We're already at that point"
We're not already at that point. The laws against growing marijuana are based on those found constitutional in Wickard v. Filburn. But it is one thing to say that a farmer may NOT grow wheat, or marijuana, and another thing for the government to compel all the people to purchase a certain amount of wheat or marijuana each year.
>"Sutton, by the way, cites it as one of his justifications for upholding the mandate"
Sutton does not come across as being terribly intelligent.
Reply to this commentLinkReport Abuse"Sutton does not come across as being terribly intelligent."
He clerked for Scalia...I'm not a huge Scalia fan, but I can't see him as the type to suffer fools lightly.
Reply to this commentLinkReport AbuseWhy don't you read the opinion and judge for yourself?
Reply to this commentLinkReport Abuse"We're already at that point..."
This is actually taking that decision one step further.
Gonzales, a case that I do believe was decided wrongly, is a prohibition - the government saying you can't do something - a "something" that isn't addressed anywhere in the Constitution. That's bad enough, and a departure from earlier in the 20th Century when people wanted to forbid the consumption of booze, at least they enacted an Amendment to effect that end.
But this case is worse because it's a mandate - it's a law that compels behavior of its citizenry. So now we're not only saying that the government can stop you from doing something that isn't addressed in the Constitution, but it can make you do something that isn't addressed in the Constitution.
It's a terrifying development. At the time, people argued that Wickard would be the beginning of the end for liberty. As it turns out, it wasn't hyperbole. Wickard has been the foundation for some of the worst Supreme Court decisions in the last 70-years.
Reply to this commentLinkReport Abuse>" it seems to me that if the Court says that under penalty of law, the government can make you buy health insurance, there is absolutely nothing the government can't make you buy or do all under the principle of "economic activity""
To Democrats this a feature and not a bug. They understand this implication, and applaud it.
Reply to this commentLinkReport AbuseJudicial restraint in the face of federal government overreach is no virtue, and judicial "activism" in such circumstances is no vice!
Reply to this commentLinkReport AbuseAll of which only illustrates why originalism is the only proper way to interpret The Constitution.
What we have is The Liberal Ratchet. Liberal judges ignore precedent and create sweeping new laws nowhere found in prior case law nor in The Constitution; conservative judges then insist that these ridiculous liberal rulings must be upheld as they are now "precedent". It's total bosh and a recipe for catastrophe.
Reply to this commentLinkReport AbuseI read Sutton's opinion as challenging the Supreme Court to make a clear statement of the limits of the commerce power. He is very clear that he's speaking in his role as an appellate judge, without authority to modify the Supreme Court's jurisprudence. If he were on the Supreme Court, it sounds like he might very well vote to overturn Wickard, and the mandate as well.
As a side note, Judge Sutton's repeated reliance on Raich demonstrates how quickly Justice Scalia's politically-motivated departure from originalism in that case is coming back to bite us.
Reply to this commentLinkReport AbuseEverything you say there is wrong.
Sutton may claim to be an appellate judge with no power to change Supreme Court precedent, but the fact is that there is no Supreme Court precedent which compels him to find the PPAC to be constitutional.
Judge Sutton may attempt to ground his position in Raich and Wickard, but he is foolish or dishonest in doing so. Nothing in Raich or Wickard suggests that the government may compel all the people of the US to purchase wheat or marijuana. Sutton has revealed himself to be neither a believer in originalism not a believer in judicial restraint.
Reply to this commentLinkReport AbuseHave you read Judge Sutton's opinion? He goes into some detail about how the role and powers of an appellate court differ from those of the Supreme Court.
It's perhaps emotionally satisfying to vilify anyone who reaches a result we don't like, but the fact is, the appellate courts are working with horrendous precedents, including Wickard and Raich. It's also true that Morrison and Lopez dealt with non-economic concerns, and that there's no analog to those cases in circumstances that are, in fact, related to economic activity. We may disagree with the way Judge Sutton handles the "action/inaction" distinction or the "f*cial/as-applied" distinction (and I do disagree with both), but his argument is hardly frivolous based on current caselaw.
[Incidentally, it's ridiculous that the bad-language filter won't let me say "f*cial".]
Reply to this commentLinkReport Abuse>"Have you read Judge Sutton's opinion?"
Yes, I have.
>"the fact is, the appellate courts are working with horrendous precedents, including Wickard and Raich."
The fact is that those precedents are not applicable to this case, and that Sutton was wrong in claiming that they set a precedent which tied his hands with respect to Obamacare.
>"his argument is hardly frivolous based on current caselaw."
There is NOTHING in current caselaw to suggest that Congress may compel people who are economically inactive to become economically active. Even Sutton does not claim that there is. He gets around this problem by asserting that those people who are not engaged in economic activity actually are in engaged in economic activity. He assets that it is impossible for any person to ever not engage in economic activity, because to do so is to make an economic choice.
He does much more than merely accept Wickard and Raich. He uses these as his starting point to concoct a whole new theory of commerce clause jurisprudence which goes far beyond anything which any court has ever said.
If you're unaware of all this then I have to ask, have YOU read Judge Sutton's opinion?
Reply to this commentLinkReport AbuseWell, yes, I have.
Look, no one wants to overturn the mandate more than I do, and you can't get to the right of me on the proper interpretation of the commerce clause. But breezy assertions, supported by nothing, that "those precedents are not applicable", are not going to cut it. The activity/inactivity question is de novo. There are no precedents that say Congress can't, and there are no precedents that say Congress can. It's not unreasonable for an appellate judge to conclude that, under current caselaw, there's essentially no limit on Congress's power when the circumstances are economic. And even if you accept the action/inaction distinction as significant, as Judge Sutton walks through at length, there are at least some circumstances in which the mandate can be said to be affecting activity, not inactivity.
As I said, I don't agree with Judge Sutton's conclusions, but I don't think you can dismiss him as a knave or a fool unless you actually respond to his arguments. He has already grappled, at length, with the activity/inactivity issue, so you have to do more than merely restate it in order to refute him.
Reply to this commentLinkReport AbuseTo rely on any court these days, much less the Supreme Court, to do the dirty work for the executive branch or Congress and strike down legislation as unconstitutional is reckless and cowardly.
Remember, the Supreme Court was supposed to do Dubya's and the Republican RINO's work for them and strike down the campaign finance law. FAIL.
I am getting the sense that the House and Senate Republicans are trying to back away from the clear and present danger of Obamacare and instead of ignoring the sideshow in the courts and making the case for the next election that Obamacare must be repealed, slinking off like whimpering dogs and deferring to the courts.
Bad idea. If the Supreme Court finds for Obamacare...then what? Where will the political will be to repeal Obamacare if two of the three branches of government support it?
Reply to this commentLinkReport AbuseThe problems on our southern border prove that our federal government is powerless to enforce laws if a large enough number of people decide to ignore them.
I think there is a sufficiently large number of Americans who would ignore the dictates of Obamacare to render it unenforceable. Civil disobedience.
Reply to this commentLinkReport AbusePoint well taken, Mr. Hawkins. Think of it as nullification, on a personal level. "Just say NO" is an honorable response for dependency, applicable to both recreational drugs and government.
Reply to this commentLinkReport Abuse"I will accept any rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do."
Reply to this commentLinkReport AbuseRobert A. Heinlein,
_The Moon is a Harsh Mistress_
Conservative jurists should invoke whatever principle is expedient to achieve the desired result: overturning Obamacare. Consistency with prior rulings is not an concern (as the scholastics would say: "if there is a contradiction, make a distinction").
Reply to this commentLinkReport AbuseThe Court is just another political branch, though we pretend (wink, wink) that it is not. I don't mind the charade as long we have the majority.