by Yuval Levin
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.