In our BREAKING NEWS item on Wednesday, we were one of the first legal blogs to report on and analyze the Sixth Circuit’s high profile opinion in Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388), in which a divided panel upheld the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. As we noted, the Sixth Circuit became the first Circuit Court in the country to rule on the health care statute’s constitutionality. Not surprisingly, the Court’s opinion is generating enormous blog commentary and is filling up the message threads.
Predictably, an avalanche of court observers are saying that the Sixth Circuit got it wrong, characterizing the Sixth Circuit’s June 29, 2011 decision as “an exercise in unwarranted judicial deference,” and lamenting its “flawed” reasoning. A number of authors, found here, here, and here, are predicting that the Sixth Circuit’s decision is sure to make it to the U.S. Supreme Court by the fall, particularly in light of Circuit Judge Jeffrey S. Sutton’s poignant challenge to the Supreme Court to reevaluate its Commerce Clause jurisprudence. (As you know from our Wednesday report, Judge Sutton joined Circuit Judge Boyce F. Martin in upholding the individual mandate under the health care statute as a constitutional exercise of Congress’s commerce power, while Senior District Judge Graham dissented, claiming that the majority’s decision effectively gives Congress a general police power that the Tenth Amendment is supposed to reserve for the states and the people.)
Just as predictable, numerous authors have praised the Sixth Circuit, finding its decision to uphold the health care statute to be thoughtful and generally well-reasoned, as reported here, here, and here. One author correctly highlights that Judge Sutton’s most critical moment was in obliterating the notion that the individual mandate somehow was a regulation of “inactivity.” As you’ll recall from our prior posts, the plaintiffs have relied on an “activity” vs. “inactivity” distinction to argue that there is not a single controlling U.S. Supreme Court 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.
You can be sure that the Sixth Circuit’s decision will be closely scrutinized by the other Circuit Courts currently addressing constitutional challenges to the health care statute, 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).
We will let you know if the plaintiffs in Thomas More Law Center file a motion for rehearing en banc within 14 days of the Court’s ruling.