Obamacare Divides the Sixth Circuit Court
Say what you want about Obamacare, it has generated tremendous opinions on first principles of Congressional and Constitutional power. A little while ago, the Sixth Circuit rejected a facial challenge to the bill popularly (among Republicans, anyway) known as Obamacare. The panel was split 2-1. One of the concurring opinions notes that he felt compelled by Supreme Court precedent to rule this way, but the Supreme Court can walk back its previous pronouncements in a way lower courts may not. I will not focus on Judge Martin’s majority opinion because I think it is not as interesting, simply upholding federal power against its opponents. The concurring and swing judge, Sutton, says the most interesting things in my view.
The government lost one important point all across the board: Congress imposed a penalty, not a tax. This is important because this bill is unlikely to be able to fall back on taxing power for its legitimacy. It stands or falls-as all the judges acknowledged-on the breadth of the Commerce Power.
The Court was so divided that everybody wrote an opinion. Judge Martin simply upheld the law as an exercise of the commerce power and the individual mandate as a way to get around the “free rider’ problem.
Judge Graham dissented on the fact that here Congress is not regulating an “activity” but inactivity. While this is a great argument based on Supreme Court cases explaining Congressional power and is relied on by opponents of Obamacare, as an originalist I have to note the Constitution states congressional power is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Activity or inactivity in commerce is not mentioned. Judge Graham also gives a shout out by name to the recent and current Justices who have promoted a limit on the Commerce clause: Rehnquist, O’Connor, Thomas, Scalia and Kennedy.
Judge Sutton’s concurrence is the most interesting. He largely relies on the case that I think is most shocking to first year law students: Wickard v. Filburn. In this case a farmer grew wheat on his own land and fed it to his own cows. He did not sell it inside his state nor across state lines. The meddling Roosevelt administration fined him for growing “too much” wheat. He argued he did not engage in interstate commerce and the law was unconstitutional as applied to him. He lost. The Court, by now packed with Roosevelt flunkies, expanded the commerce power beyond anything previously sanctioned. Through this case Congress was allowed, with the virtual removal of judicial review, to regulate huge swaths of American life never before subject to its regulation. And, under a footnote in Carolene Products, states would eventually be unable to legislate in areas they had always had power to regulate.
Judge Sutton agrees with the plaintiffs that no Congress has ever asserted power this broad. However, he also agrees with Wikipedia on Wickerd v. Filburn: “Wickard arguably marked the end to any limits on Congress's Commerce Clause powers.” Judge Sutton argued that if Wickerd , which has recently been reaffirmed in a case called Raich about marijuana (O Tempora! O Mores!), it is to be cut back only by the Supreme Court, not a lower court.
The dissenting Judge Graham believes that the Sixth Circuit was not bound by Wickerd or any other case precisely because every judge admitted this was a novel situation.
It is also clear that at least with the Sutton, the swing vote, this case failed because it was a “facial challenge.” That is, the plaintiffs were not relying on how the case had been applied to them, but that it was unconstitutional on its face. These are theoretically the hardest cases. Judge Sutton noted that other plaintiffs would have an uphill struggle, but that facts make a case which is another reason not to strike down the law, but to allow politics to work themselves out.
I think this is a good case to enter in an exhibit against the idea of political judging by Republican nominees. Two of the judges are Republican appointees. All telegraph an uneasiness with the actual law in question, but that does not decide the outcome. All three opinions are well-written and strong. But in this novel area they are in the position of thinking anew. It is amazing how differently they all come out-except on the legally-important but boring anti-injunction act.
The Sixth Circuit is a conservative, Republican-dominated circuit court. The administration has a right to crow about this opinion but it is not a home-run. The Supreme Court is not likely to buy the taxing arguments, the standing arguments, or any of the other lawyerly dodges of the main question. This case, when appealed, will stand or fall on whether commerce power extends so far. I believe Obamacare will be upheld. Since I believe Democratic appointees will never strike down Congress’s power to seize, direct, and confiscate private wealth on any pretext, then it has four votes in Breyer, Ginsberg, Sotomayor and (if not recused) Kagan. Scalia and Thomas are the only reasonable votes against the individual mandate, with Kennedy a possibility. Justices Roberts and Alito are what I call “big government” or Hamiltonian conservatives. Their lives have been dedicated to the vindication of federal power. Justice Roberts was a Rehnquist clerk and succeeded him, and there may be some residual pull to vindicate the enumerated powers view of the Constitution. However, that is a thin hope. Republican justices and nominees have shown a divergence of Constitutional views. Democratic justices will not. The plaintiffs must pull an inside straight to get five. The government needs only a pair of deuces. The proper course is for Republicans to repeal this bill before the Court can rule and make legal a breadth of federal power never before seen.