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Thursday, June 30, 2011

A Big (Freaking) Deal

Marc Steinberg

Deputy Director of Health Policy

Today’s decision by the Sixth Circuit Court of Appeals is, as the Vice President might say, a big (freaking) deal. The court ruled that the individual responsibility provision of the Affordable Care Act is constitutional. It’s the first time an appellate court has ruled on the issue, and it adds to the growing number of courts that have rejected challenges to the law. Four courts have now upheld the law on its merits (today’s decision goes alongside decisions in district courts in Michigan, western Virginia, and DC), and over a dozen other courts have rejected challenges for procedural reasons. As more courts rule, the two district court decisions that struck down the law (in eastern Virginia and Florida) are likely to look more and more like the radical outliers that they are.

But today’s decision is important for a more subtle reason. One of the judges writing in favor of the law was Jeffrey Sutton. Judge Sutton is a rising star in conservative legal circles. He clerked on the Supreme Court for Justice Scalia. He is active in the conservative Federalist Society. He was appointed to the Sixth Circuit by President George W. Bush and narrowly confirmed by the Senate in 2003. He’s nobody’s idea of a bleeding heart. But he believes the Affordable Care Act is constitutional.

In his opinion, Judge Sutton takes on some of the favorite arguments brought by opponents of the law. Does the law go too far by regulating “inactivity?” No, says Judge Sutton. You’re not “inactive” when you don’t buy health insurance. He writes: “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. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”  Well, then, if Congress can do this, can’t it make you do anything (the notorious “broccoli argument”)? No, says Judge Sutton. Health care is different from these other markets. No one can know what health care they will need and when.

Finally, Judge Sutton ends his opinion by noting that ultimately, whether the Affordable Care Act is good or bad is a political question, not a legal one. And it’s up to the people through their elected representatives, and not judges, to resolve that question. This approach is a refreshing change from the radical judicial activism we saw from Judge Vinson in Florida, and it lays out a promising blueprint for other conservatives to follow – including conservatives on the Supreme Court like Judge Sutton’s mentor, Justice Scalia.

Judge Sutton is right. It is up to us, the people, to make sure the Affordable Care Act delivers on its promise to make affordable, high-quality health care a reality for all Americans. The work is well underway across the country and much more remains to be done. Opponents who have been hiding behind the lawsuits as an excuse not to implement the law are on much weaker ground today. Those of us who support the law need to keep moving forward.