By Sam Baker - 06/30/11 12:04 AM EDT
Supporters of healthcare reform won their biggest court decision yet on the constitutionality of the new law — and they won it with help from a judge who has strong conservative credentials.
A panel of the 6th Circuit Court of Appeals ruled 2-1 Wednesday that Congress has the power to make most people buy insurance. It was a clear win for supporters of the healthcare law, especially because it’s the first ruling on the mandate from a federal appeals court.
Sutton was appointed by President George W. Bush and served as a clerk for Supreme Court Justice Antonin Scalia — among the most conservative members of the high court. Sutton also has been a member of the conservative Federalist Society.
“It really is an opinion that says, ‘If you are a thoughtful conservative … this is how I think you have to come out,’ ” said Simon Lazarus, public policy counsel with the National Senior Citizens Law Center.
Sutton is the first Republican appointee to rule in favor of the mandate, and liberals were eager to highlight the level of detail in his analysis. Walter Dellinger, a former acting solicitor general, called the decision a “thoroughgoing vindication” of the healthcare law and said it “obliterated” opponents’ principal arguments.
Conservatives were equally taken aback by Sutton’s decision. Ilya Shapiro of the libertarian Cato Institute said it was “shocking that an avowed constitutionalist like Judge Sutton” would uphold the mandate.
The 6th Circuit suit was filed by the Thomas More Law Center, a conservative organization based in Michigan. The center did not return a request for comment on Wednesday’s ruling.
The case presented some peculiar procedural issues — one of the plaintiffs who said she would be harmed by the requirement to buy insurance turned out to already have it. But the 6th Circuit bypassed those issues and ruled on the constitutional merits of the mandate.
“Call this mandate what you will — an affront to individual autonomy or an imperative of national healthcare — it meets the requirement of regulating activities that substantially affect interstate commerce,” Sutton wrote in his opinion.
Congress has the power to regulate economic activity, but critics say the mandate actually compels people to make a purchase they might not want to. They say it regulates economic inactivity, rather than activity. The Justice Department argues that everyone participates in the market for healthcare services and the mandate simply governs how those services are paid for.
The 6th Circuit agreed with the government’s interpretation.
“The activity of forgoing health insurance and attempting to cover the cost of healthcare needs … is no less economic than the activity of purchasing an insurance plan,” the majority opinion states.
Similar challenges — one filed by Virginia Attorney General Ken Cuccinelli and another by 26 state attorneys general — are pending in other circuit courts.
Those courts are expected to rule before the Supreme Court’s next session begins in October. The justices would then be able to choose among the three cases or, more likely, consolidate them.
Dellinger and other legal experts say the Supreme Court will probably rule on the mandate next summer — just months before the 2012 elections.
-- This story was updated at 8:04 p.m.