6th Circuit concedes Obamacare mandate is new exercise of federal power

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While a federal appeals court dealt a blow to opponents of the health care law on Wednesday in upholding the constitutionality of the individual mandate, all judges, to varying degrees, acknowledged that by enacting the provision, Congress exercised its power in a way that has never been considered by the U.S. Supreme Court.

Today’s 2-to-1 decision (PDF) by the U.S. Court of Appeals for the Sixth Circiut came in the case brought by the Thomas More Law Center, and is not to be confused with the suit brought by the National Federation of Independent Business and 26 states led by Florida, which has yet to be decided by the 11th Circuit.

Reagan-appointed Judge James Graham, the lone dissenter in the Sixth Circuit decision, was most emphatic about the unprecedented nature of the health care law.

“The mandate is a novel exercise of Commerce Clause power,” Graham wrote. “No prior exercise of that power has required individuals to purchase a good or service.”

Even the Carter-appointed Judge Boyce Martin conceded in his opinion upholding the law that, “The Supreme Court has never directly addressed whether Congress may use its Commerce Clause power to regulate inactivity, and it had not defined activity or inactivity in this context.”

Though he ultimately voted to uphold the law too, Judge Jeffrey Sutton, an appointee of President George W. Bush, separately acknowledged that those challenging it raised a “compelling” point about whether the Commerce Clause gives Congress the power to regulate inactivity.

“The court, for one, has never considered the validity of this type of mandate before, at least under the commerce power,” Sutton wrote.

Specifically, he rejected the government’s attempts to draw parallels with a civil rights era case, Heart of Atlanta Motel, Inc. v United States, which found that inns couldn’t discriminate against customers on the basis of race. “If covered entities offer lodging in interstate commerce, Congress tells them how to do so and requires action in the process,” Sutton wrote. “Congress did not try to solve this policy problem by compelling individuals to open inns in the first instance.”

One would think that the default position in such a circumstance would be to strike down the law in the absence of clear guidance from the higher court. Unfortunately, Sutton went in the opposite direction in upholding the law, and resorted to guesswork, based on what he described as the “language and direction of the Court’s precedents.”

Referring to the New Deal era case, he wrote that, “The Supreme Court can decide that the legend of Wickard has outstripped the facts of Wickard – that a farmer’s production only of more than 200 bushels of wheat a year substantially affected interstate commerce…A court of appeals cannot.”

Sutton also wrote that the Supreme Court “has considerable discretion in resolving this dispute.”

It goes without saying that a victory in today’s case would have been far better for opponents of the law. But in the bigger picture, the fact that all justices acknowledged that the courts have never had to grapple with this issue before strengthens the argument for why the Supreme Court should take up the matter, something that is widely-seen as inevitable, but is by no means guaranteed. Whatever their ultimate conclusions, today’s decision shows that this is not the kind of clear-cut case supporters of the law once believed when they assumed legal challenges would be laughed out of court.  

Furthermore, Sutton’s decision may not be as influential on conservative Supreme Court justices as supporters of the law are hoping, especially given how he defined the limitations of a lower court judge, and referenced the broader leeway of Supreme Court justices to interpret precedent.

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