Right-Wing Blogosphere Downplays Conservative Judge's Opinion Upholding Health Care Reform Law

››› ››› ADAM SHAH

After the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of the individual mandate provision of the Affordable Care Act, many right-wing bloggers criticized the decision or downplayed its significance. But one of the judges who voted to uphold the statute was Jeffrey Sutton, an appointee of President George W. Bush who was such a proponent of states' rights during his legal career that he once proclaimed that he became involved in states' rights issues because "I really believe in this federalism stuff."

Sixth Circuit Upholds The Constitutionality Of The Individual Mandate With Conservative Judge Sutton Agreeing

By A 2-1 Vote, The Sixth Circuit Upholds The Constitutionality Of The Individual Mandate. In Thomas More Law Center v. Obama, the Sixth Circuit held by a vote of 2 to 1 that the provision of the Affordable Care Act mandating that individuals purchase health insurance does not violate the Constitution. The majority consisted of Sixth Circuit judges Boyce Martin and Jeffrey Sutton. District Judge James Graham, acting as a Sixth Circuit judge in this case, dissented. [Thomas More Law Center v. Obama, 6/29/11]

Sutton Was Appointed To The Bench By Bush Over The Opposition Of 41 Of 48 Senate Democrats. Sutton was appointed by Bush in 2003 after a Senate vote in which 41 of the 48 Democrats and the one independent in the Senate opposed his nomination. [Senate.gov, 4/29/03]

As A Lawyer, Sutton Successfully Argued That Portions Of The Violence Against Women Act, Age Discrimination In Employment Act, Americans With Disabilities Act, And Other Laws Unconstitutionally Violated States' Rights. As Ohio State Solicitor and later in private practice, Sutton filed Supreme Court briefs and participated in oral arguments in cases in which the Court struck down portions of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Religious Freedom Restoration Act, and the Violence Against Women Act on states' rights (or federalism) grounds. He also successfully argued that Clean Water Act regulations were unconstitutional on states' rights grounds. [Alliance for Justice report opposing the nomination of Jeffrey Sutton, January 2003]

Sutton Said He Took Such Cases Because He "Really Believe[s] In This Federalism Stuff." As reported by Alliance for Justice, Sutton told the Legal Times that he became involved in these states' rights cases because "I love these issues. I really believe in this federalism stuff." [Alliance for Justice report opposing the nomination of Jeffrey Sutton, January 2003]

Sutton Told The Federalist Society "We Ought To Find A Way To Continue To Push [Federalism] In The Direction It Is Going." As an attorney, Sutton was an officer of the conservative Federalist Society's Federalism and Separation of Powers Practice Group. While monitoring a panel on Supreme Court decisions that had resurrected states' rights doctrines, Sutton said:

Since Rodriguez, all of that litigation has shifted to the state level. And in Ohio, I litigated and just lost a case on this very score. While I am not happy about it, what is good about decisions like this is that even when you lose, the problem is still resolved at the local level. The Ohio Supreme Court is going to have to come back and revisit this issue. It is going to have to tinker with it in the context of what Ohio legislators can do, and that is something the people of Ohio have a little more control over than they would if these decisions were made in Washington, D.C. That strikes me as the real value of federalism and why we ought to find a way to continue to push it in the direction it is going. [The Federalist Society, 5/1/98, emphasis added]

Despite Sutton's States' Rights Credentials, Bloggers Criticize Him For Getting The Law Wrong

NRO's Severino: Sixth Circuit "Erred As A Matter Of Both Law And Logic." In a blog post, National Review Online blogger and Judicial Crisis Network chief counsel Carrie Severino ignored Sutton's agreement that the health care mandate was constitutional, but nevertheless excoriated the Sixth Circuit's decision upholding the individual mandate:

Those watching the Obamacare litigation have been hoping that the Sixth Circuit panel might render a favorable first appellate result for challengers of the law because, despite some weaknesses in the case, the panel of judges seemed inclined to overturn the law. Instead, the Sixth Circuit today upheld the law in a decision that erred as a matter of both law and logic.


Under Obamacare, Americans are regulated regardless of whether they do "participat[e] in the national health-care market" on the assumption that they will do so. Today's opinion admits that this participation is not universal by saying that "virtually" everyone will participate at some point. But, as attorney Mike Carvin argued to the Eleventh Circuit, we can't just say "good enough for government work" when it comes to the Constitution.

Unfortunately, it seems that plaintiffs in this case gave away the farm by accepting the government's definition of the regulated activity, although Judge James Graham's excellent dissent clarifies that, "simply put, the mandate does not regulate the commercial activity of obtaining health care. It regulates the status of being uninsured."

The court's elision of the logical distinction between actual and likely market participation resurfaced in its discussion of inactivity vs. activity and exhibited a surprising disdain for clear, logical argument. [National Review Online, 6/29/11]

Cato's Shapiro: Sutton's Opinion Was "Shocking." From a post by Cato Institute senior fellow Ilya Shapiro headlined, "The Sixth Circuit Got It Wrong":

Today's 2-1 Sixth Circuit Obamacare decision was an exercise in unwarranted judicial deference, not by the author of the majority opinion, Judge Boyce Martin, who regularly rubberstamps misuses of federal power, but by concurring Judge Jeffrey Sutton, who avoided the logical implications of this ruling and punted the main issue to the Supreme Court. Under a document establishing a government of enumerated and therefore limited powers, the burden is on that government to prove that it has the power to do something, not on the plaintiffs to disprove that power.


While a progressive like Judge Martin could be expected to accept any exercise of federal power, it is shocking that an avowed constitutionalist like Judge Sutton requires Congress to show only a rational basis behind what it does -- a "reasonable fit" between the means it chooses and the ends of regulating interstate commerce -- to survive constitutional scrutiny. Under such logic, Congress can do anything it wants so far as it is essential to a larger regulatory scheme. That cannot be the law. [Cato Institute, 6/29/11]

NRO's Roy: Sutton's Opinion Is "Unpersuasive." From a post by National Review Online health care blogger Avik Roy:

Sutton says, unpersuasively, that health care is different, because it involves "regulating how citizens pay for what they already receive." He points out that Congress could pass a universal health care tax and deduct it for those who buy insurance, achieving the same thing as a mandate -- which is true, but hardly means that a mandate is constitutional.

In sum, Sutton asks the right questions, but fizzles on the answers. [National Review Online, 6/29/11]

Volokh Conspiracy's Barnett: Majority Opinions Were "Problematic" And Showed Logical "Weakness." From a post by Georgetown University law professor and Volokh Conspiracy blogger Randy Barnett:

The use of "self-insurance" by the majority was problematic. Neither Judge Martin or Sutton spend much time explaining the concept of "self-insurance" upon which their opinions vitally depend. Wikipedia summarizes the conventional technical meaning of this activity: "Self insurance is a risk management method in which a calculated amount of money is set aside to compensate for the potential future loss." In other words, companies "self-insure," when instead of entering a risk pool provided by an "insurance" company, they create their own pool of funds from which to handle future losses. This is a genuine activity. Doing nothing and waiting to pay for something later -- perhaps best called "self-financing" -- is simply not the same thing. The key about "self-financing" is that it happens when you receive services and are called upon to pay. But this is not the class of activities defined by the statute. In this way, by misusing the term "self-insurance," both judges convert inactivity into a "class of activities." But that is merely semantic not substantive.


The swing vote depended on a "Roach Motel" theory of facial challenges. 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. [Volokh Conspiracy, 6/30/11]

Volokh Conspiracy's Somin: Reasoning Of The Majority "Highlight[s] A Central Weekness Of The Pro-Mandate Position." From a post by George Mason University assistant professor of law and Volokh Conspiracy blogger Ilya Somin:

Today's 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges' votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress' powers under the Commerce Clause.

At the same time, Martin and Sutton's opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is "economic activity," Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of "substantial" economic effect.

The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. [Volokh Conspiracy, 6/29/11]

  • Blogger Ann Althouse Re-Posted Somin's Analysis On Her Blog. University of Wisconsin law professor and blogger Ann Althouse posted an excerpt from Somin's post on her blog under the headline, "6th Circuit upholds the individual mandate." [Althouse.Blogspot.com, 6/29/11]

Somin Also Argued That "Sutton's Analysis Rests On A Misinterpretation Of The Plaintiffs' Argument." From a Volokh Conspiracy post by Somin:

Sutton appears to be arguing that the plaintiffs' claim that the mandate is an unconstitutional regulation of inactivity does not apply to the first three of the above situations because people who fall into these categories have already engaged in activity in the health insurance market. Therefore, the mandate could be imposed on them even under the plaintiffs' reasoning.

Sutton's analysis rests on a misinterpretation of the plaintiffs' argument. The key point is not that a given plaintiff hasn't engaged in economic activity, but that the regulation imposed by Congress does not require any such activity as a prerequisite for covering them. The fact that some of the individuals covered by the mandate could be regulated by a more narrowly drawn law (e.g. -- one that covered only people who had already purchased health insurance) does not mean that the present mandate is constitutional as applied to them. Their having previously engaged in economic activity that Congress could regulate is purely coincidental. It is not the reason why the mandate applies to them, under the terms of the law itself.

By Judge Sutton's reasoning, the Supreme Court should have rejected the facial challenges brought in United States v. Lopez and United States v. Morrison. [Volokh Conspiracy, 6/29/11]

  • Volokh Conspiracy Blogger Adler "Largely Agree[d] With" Somin's Analysis. Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler said of Somin's post criticizing Sutton's position on facial and as-applied challenges: "I largely agree with Ilya's post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, whatever the other merits of Judge Sutton's opinion -- which is quite strong, even if I disagree with its conclusion -- it mishandles this issue." [Volokh Conspiracy, 6/30/11]

Other Right-Wing Bloggers Dismissed Sutton's Opinion As No Big Deal

Hot Air's Morrissey: Sixth Circuit Decision "Is Just One More Stop Along The Road Anyway." From a Hot Air blog post by Ed Morrissey:

In a split decision, the panel upheld the individual mandate as falling within the power of Congress to regulate interstate commerce, and ruled that the Constitution does not forbid regulation of "inactivity".


The question of federal usurpation of power will matter more in the context of Virginia v Sebelius and the multi-state case originating in Florida.

However, this will give the Obama administration some political breathing room until those two cases get to the appellate court. This is just one more stop along the road anyway, as this won't get resolved until the Supreme Court decides to combine the cases and make a final ruling. [Hot Air, 6/29/11]

NRO's Troy: "There Are Still Plenty Of Judges Who Need To Weigh In On" Health Care Law. From a National Review Online blog post by Tevi Troy, a top official in the Bush administration's Department of Health and Human Services, headlined, "No Reason for Panic on Health Law":

The takeaway from most of the coverage thus far, including the New York Times', is that this decision is the "first on the merits that has not broken down strictly along seemingly partisan lines." True enough, as far as it goes, but there are still plenty of judges who need to weigh in on this, and we may see other partisan deviations down the road.

The more important point was made by Politico's Jennifer Haberkorn, who noted that "the 6th Circuit is the first of three appeals panels expected to issue rulings on the law this summer." We will know more after the other rulings later this summer, and the real resolution on this will not come until we hear from the Supreme Court. In the meantime, nothing has changed the fact the Obama health-care law is expensive, intrusive, and continues to face significant challenges on the political, legislative, and judicial fronts. [National Review Online, 6/29/11]

Posted In
Health Care, Health Care Reform
National Review Online
Ed Morrissey, Carrie Severino
Hot Air, Cato Institute
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