Why The Sixth Circuit's Opinion On The Individual Insurance Mandate Matters

Yesterday, the Sixth Circuit court of appeals across the river in Cincy ruled 2-1 that the individual mandate provision in the Affordable Care Act was constitutional.  The reason why this matters?  The deciding vote and opinion was authored by Judge Jeffrey Sutton, a Bush 41 appointee and former clerk to Justice Scalia, and he came out for the mandate.

The Sixth Circuit majority held that the mandate was “facially constitutional under the Commerce Clause” for two reasons.

“First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce,” Judge Martin wrote. “In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”

The court directly addressed whether a choice to go without health insurance qualifies as an “activity” that substantially affects interstate commerce, which is the standard set in prior Supreme Court decisions on the breadth of the Commerce Clause.

“The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan,” the opinion stated.

The majority emphasized that the case should not hang on distinctions about whether the failure to buy insurance should be defined as activity or inactivity, a question the Supreme Court has never considered. “The constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label,” the judges said.

In his concurrence, Judge Sutton added, “Inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk.” Whether an individual buys an insurance policy or not, the judge wrote, “each requires affirmative choices; one is no less active than the other; and both affect commerce.” 

In other words, despite all the silliness that by affirming the ACA that Congress will be able to compel Americans to buy green socks or force Americans to take up subsistence farming or face penalties that you would expect from a Scalia disciple (and indeed, the minority opinion was centered around the idea of an unlimited Commerce Clause) but Judge Sutton did not bite.

It bodes very well for the real battle at the Supreme Court.