Letting the air out of the legal attack on the individual mandate

Appearing at the very end of Linda Greenhouse's thorough (and thoroughly enjoyable) scorecard of the latest Supremes' session she mentions a lower court decision I certainly either hadn't noticed or not paid all that much attention to. Which is odd, because if Greenhouse is correct -- and she generally is -- it's momentous.

Reading the Tea Leaves: Two days after the term ended, the United States Court of Appeals for the Sixth Circuit issued an opinion upholding the constitutionality of the new health care law. It is hard to overstate the importance of Judge Jeffrey S. Sutton’s controlling opinion for the three-judge panel. It would be inaccurate to say that Judge Sutton is a rising star in the conservative legal firmament; the 50-year-old former law clerk to Justice Scalia and the late Justice Lewis F. Powell Jr. is fully risen, on anyone’s short list for the next time a Republican president gets the chance to make a Supreme Court nomination.

His decision rejecting the constitutional attack on the Affordable Care Act did not simply make him the first Republican-appointed judge to uphold the statute. His opinion is an act of intellectual integrity. He treats the attack on the law as weighty and respect-worthy, and then demolishes it. At the heart of the attack on the individual mandate is the claim that the Commerce Clause does not give Congress the authority to regulate “inaction,” i.e. not buying health insurance. “Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power?” Judge Sutton asks. His answer: “No – for several reasons.”

This is not the place to go into those reasons. But in any event, Judge Sutton then renders the “inaction” shibboleth irrelevant, first quoting Warren Buffett on the virtues of inactivity when evaluating financial risk and then declaring: “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk.”

This air-tight opinion, I believe, has taken the air out of the effort to overturn the law and makes it measurably more likely that the Supreme Court will ultimately uphold it. The opinion has not received the public attention it merits, but I can think of nine offices in a marble building on Capitol Hill where it is being scrutinized, actively.