If you have been following my blog posts for the last half year, you know I have been predicting that the Sixth Circuit was poised to become the first appellate court in the country to rule on the constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. I also predicted earlier this month in my interview with the Voice of Russia radio network that an opinion would be forthcoming by midsummer. Both of these predictions proved accurate today.
The Sixth Circuit earlier today issued a whopping 64 page opinion (just 28 days after oral argument) in which it upheld the health care statute as a constitutional exercise of Congress’s commerce power. See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). The Sixth Circuit has become the first Circuit Court in the country to rule on the health care statute’s constitutionality, and its analysis is sure to reverberate in other Circuit Courts still addressing the same issue, including the Fourth Circuit (which heard oral arguments on May 10, 2011), and the Eleventh Circuit (which heard oral arguments on June 8, 2011). See Commonwealth of Virginia, et al. v. Sebelius (Fourth Circuit, Case No. 11-1057); State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021).
The Sixth Circuit panel included Sixth Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation. All three judges issued separate opinions, and all three agreed that the plaintiffs had standing to bring their claims and that the Anti-Injunction Act did not bar the plaintiffs’ action. But that is where the agreement ended.
Only Circuit Judges Martin and Sutton agreed that the individual mandate was a constitutional exercise of Congress’s Commerce Clause power. As Judge Martin stated in his opinion, the minimum coverage provision is constitutional because it regulates economic activity with a substantial effect on interstate commerce, and it is an essential part of a broader economic regulatory scheme. Of particular note, Judge Martin knocked down the plaintiff’s “activity” vs. “inactivity” distinction under which the plaintiffs had argued that there is not a single controlling case that allows Congress to stretch its Commerce Clause authority to regulate intrastate inactivity or, in effect, mere “existence” within the borders of the United States. Judge Martin said that “the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label.”
Judge Sutton similarly agreed that the Commerce Clause does not contain an action/inaction dichotomy that limits congressional power. First, the relevant text of the Constitution does not contain such a limitation. Second, as Judge Sutton observed, “the promise offered by the action/inaction dichotomy—of establishing a principled and categorical limit on the commerce power—seems unlikely to deliver in practice.” In the end, Judge Sutton chose the path of judicial restraint. He recognized that the policy debate over the strengths and weaknesses of the health care statute must be resolved in the political sphere, not by the judiciary acting as a super legislature. As Judge Sutton wrote: “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”
Senior District Judge Graham vehemently dissented. Invoking, among other authorities, The Federalist No. 78 (Alexander Hamilton), Judge Graham concluded that the individual mandate is “legally stillborn” because it exceeds Congress’s power under the Commerce Clause. Judge Graham highlighted that “[i]f the exercise of power is allowed and the [individual] mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.” According to Judge Graham, the Sixth Circuit’s opinion effectively gives Congress a general police power that the Tenth Amendment is supposed to reserve for the states and the people. For Judge Graham, “[a] structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.”
The Sixth Circuit’s divided opinion in Thomas More Law Center is a fascinating read that touches upon history, federalism, and venerable principles of constitutional law. It will receive extremely close scrutiny given the politically charged atmosphere under which it was decided. And yet, this is just the beginning of the story. Look for the plaintiffs to file a motion for rehearing en banc within the next 14 days. Stay tuned to our blog for the latest.