If health care reform survives its court challenges, one man will have been instrumental: Judge Jeffrey Sutton of the 6th Circuit U.S. Court of Appeals in Ohio.
You may not have heard of Sutton, but he's a fixture in conservative legal circles. Sutton clerked for U.S. Supreme Court Justice Antonin Scalia. As a lawyer, he was an active member of the Federalist Society and a persistent advocate for states' rights before the U.S. Supreme Court. After Sutton was nominated to the federal appellate bench by President George W. Bush, he won only two Democratic votes in his Senate confirmation.
Yet Sutton, in a stroke of uncompromising objectivity, became the first judge appointed by a Republican president to rule in favor of the constitutionality of the Affordable Care Act. His concurring opinion last month in Thomas More Law Center vs. Obama, which upheld the health reform law 2-to-1, decimates the view that the act is unconstitutional, even as Sutton undoubtedly harbors great personal sympathies for the act's undoing.
These days, that borders on the heroic. Sutton's opinion slices and dices the key arguments made by those who claim the individual mandate that requires almost everyone to obtain health insurance or pay a penalty is unconstitutional. Their primary claim is a states' rights one, that Congress doesn't have power to regulate "inactivity" under the Commerce Clause since inaction doesn't affect interstate commerce, and without that limit there would be no meaningful constraints on what Congress can do.
First, Sutton easily found that the individual mandate "substantially affects" interstate commerce, noting that obtaining health care, paying for it and insuring for health care are activities that soak up 17.6 percent of the national economy.
He said there is no way to separate the act of paying for health care and insuring for it since it's "two sides of the same coin" of managing risk. By choosing not to buy health insurance and self-insuring instead, one is likely relying on others to pay when catastrophe strikes — decisions that cost $43 billion in uncompensated medical care in 2008. In light of this, Sutton wrote, "the decisions and actions of the self-insured substantially affect interstate commerce."
Sutton pointed to prior cases where the Supreme Court upheld federal laws under the Commerce Clause. One limited the amount of wheat an American farmer could grow for his own use, and another prohibited a medical marijuana patient in California from growing her own supply. He said if these people affect interstate commerce, so do the 50 million Americans who self-finance their medical care.
Second, as to the argument that one way federal power under the Commerce Clause is limited is by preventing Congress from regulating "inactivity," Sutton found no such limitation. For example, he notes, Congress may force activity, such as the payment of child support. It can also force inaction, such as prohibiting the possession of certain drugs. Sutton declared, "(N)o one is inactive when deciding how to pay for health care."
His answer to whether this opens the door to Congress compelling Americans to join health clubs or buy vegetables is that health insurance is easily distinguished. "Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life," Sutton wrote.
And, if this is such an indefensibly intrusive law, Sutton asked, why is only Congress barred? Why not the states, too? Yet few suggest that Massachusetts didn't have the power to compel individuals to buy health insurance. And it's generally agreed that Congress could have used its taxing power to accomplish the same thing, imposing a general "health care tax" and then freeing from it those who buy health insurance.
The ease with which Sutton — who Scalia once called "one of the best law clerks I ever had" — found the health reform law constitutional is promising. Maybe Sutton's willingness to do his job fairly without ideological influence will rub off on fellow conservatives when the issue gets before the Supreme Court, probably next term. Maybe.