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.