From the start, I have believed and have said, publicly and privately, that the U.S. Supreme Court’s eventual ruling on the constitutionality of the Affordable Care Act’s individual mandate could be forecast with an eye on political leanings at least as much as legal analyses. Specifically, I have predicted that because 5 members of the 9 member Supreme Court were Republican appointees, it is more likely than not that the individual mandate would be nullified as an unconstitutional exercise of Congressional power.
The 6th Circuit U.S. Court of Appeals yesterday issued a decision that throws my presumption and therefore my prediction into serious doubt. Not only because 2 or the 3 Appellate judges upheld the individual mandate. But because of the powerful concurring opinion written by Judge Jeffrey Sutton, a once controversial appointee of President George W. Bush.
My original prediction was not based on cynicism. When my clients, mostly entrepreneurial health care and health service clients, ask me for an opinion, I try to give them a practical answer they can bank on based on available data. History shows that if there is a sufficient legal rationale for doing so, then the Roberts Court will almost always issue a decision that favors the conservative political point of view in cases in which there is a sharp ideological divide, the 5 Republican appointees favoring the conservative point of view, and, just as predictably, the 4 Democratic appointees favoring the liberal point of view. Because there is a solid legal rationale for finding the mandate unconstitutional (as well as vice-versa), I predicted a party line 5-4 vote to strike it, preceded by the lower courts following the same political bent.
Sure enough, at the federal district court (or trial) level, the 5 decisions so far have broken down along predictable party lines. The 3 judges that upheld the mandate were appointed by Democratic presidents; the 2 that ruled it unconstitutional were Republican appointees. Judge Sutton is the first judge (of either stripe) to break ranks.
Judge Sutton is no ordinary conservative judge. Regarded as a brilliant lawyer, he is seen (formerly, at least) as one of the driving creative thinkers behind a conservative bloc in the federal judicial system and as a nemesis to progressive causes. His 2003 confirmation (at a relatively young 42 years of age) was stalled in the Senate for 2 years before being approved by a 52-41 vote, over strident opposition by liberal groups. Perhaps most importantly, he is a former law clerk to conservative U.S. Supreme Court Justice Antonin Scalia, who once described Sutton as “one of my former clerks whom I am the most proud of.”
One may assume, therefore, that the conservatives on the Supreme Court, and particularly Justice Scalia, would be predisposed to least take Judge Sutton’s concurring opinion seriously. That the opinion is cogently, even pithily, written, well reasoned and based squarely on precedent will make it even harder to dismiss, especially since the precedent includes an important 2005 Commerce Clause case—in which Justice Scalia concurred–upholding Congress’s power to regulate local use of medical marijuana (Gonzalez v. Raich). Also, that decision was joined by Justice Kennedy, the conservative justice probably most reluctant to overrule an act of Congress.
This doesn’t mean that I now flatly predict the Supreme Court will uphold the mandate. In fact, most of the conservatives there will probably agree with the solid dissenting opinion of Judge James Graham (who invites the Supreme Court to overrule prior precedent) and the Cato Institute’s Ilya Shapiro, who yesterday described Sutton’s reasoning as “shocking” and “an exercise in unwarranted judicial deference.” But the Justices will at least have to grapple with Judge Sutton’s reasoning and Kennedy, Scalia, or both may find it difficult to distinguish Raich from this case.
The bottom line is that the odds of the law surviving have increased, I think significantly. So at this point, it would be more prudent to plan on its survival than not if planning is necessary now. If it isn’t, then all should be clear by this time next year.
That’s because the 6th Circuit ruling came down relatively quickly, increasing the odds that the Supreme Court will take the matter up in its next session, beginning in October, and would render an opinion by next summer—just in time for the 2012 election season! The odds of that happening will increase significantly if 2 other federal appeals courts (the 4th and 11th) also hand down decisions before October, especially if either of them finds the mandate to be unconstitutional. The Supreme Court will typically weigh in if lower appeals courts disagree on questions of constitutionality.
Note: for present purposes, I have avoided discussion of the legal arguments in support of, or against, the mandate. I assume a strong level of prior knowledge by my audience. But suffice it to say that, as of 2014, the Affordable Care Act requires almost all American citizens to have health insurance coverage or pay a penalty to be collected by the IRS. This requirement is a key part of a larger scheme to assure affordable access to health care by all Americans by bringing relatively healthy uninsureds into insurance risk pools. Obama adminstration lawyers argue that Congress had authority to enact the mandate under 2 sections of Article I of the U.S. Constitution: the interstate Commerce Clause and the Taxing Authority. Opponents of the individual mandate argue that Congress does not have the power to require consumers to purchase anything, and that an individual’s decision not to purchase health insurance does not impact interstate commerce anyway; and that Congress did not base its authority under the tax clause. Judge Sutton, looking to Supreme Court cases expanding the Commerce Clause for more than 65 years, finding that Congress has a “rational basis” for believing a decision not to purchase health insurance impacts interstate commerce, and that courts must give deference to Congress, agreed with Justice Boyce Martin (a Carter appointee) that Congress had power to enact the mandate.
Allen Bradford is a health care attorney practicing in Connecticut.