Professor Randy Barnett has posted his analysis of the 6th Circuit’s Obamacare decision, and I highly recommend it. Judge Sutton’s concurring opinion has generated quite a bit of discussion about the approach judges should take to facial challenges, and I think Randy’s analysis is particularly strong on that point:
According to Judge Sutton’s view of facial challenges, the mandate is constitutional as applied to anyone who already has insurance. Having once voluntarily chosen to get insurance, they can be mandated never to stop. Like the Roach Motel, once citizens check into the health insurance market, they can never check out. This implication of Judge Sutton’s analysis is a sign of its weakness, and why it won’t be adopted the Supreme Court. Ilya and Jonathan have already ably explained some of the substantive difficulties with this approach. But the key is that his view of facial challenges was crucial to his decision, because it allowed him to avoid the hardest issues posed by the mandate: compelling citizens into a market – here the insurance market – who are not currently in that market. (I realize that the government claims the “relevant market” is the health care market, but this rewriting of the statute has other problems.) If Judge Sutton is right about “facial challenges,” and Judge Martin and others are right about the unavailability of “as applied challenges” after Raich (as I think they are), then there is really no justiciable way to adjudicate whether Congress has exceeded its Commerce Clause powers. Here is the basic logic:
“Facial” challenges will be denied so long as there are any constitutional applications of the law.
But, so long Congress can reach a “class of activities,” the courts will not carve out subclasses in an “as applied” challenge to see if they may beyond Congress’s power.
This would be a radical conclusion I doubt the Supreme Court will adopt. By the time it reaches the Supreme Court, Judge Sutton’s analysis of facial challenges will have been thoroughly vetted. In the end, the choices for the justices will be between something like Judge Martin’s opinion or Judge Graham’s. The “center” will not hold.
See here, here and here for more analysis of Judge Sutton’s concurrence.