Final update completed 5:40 p.m.

The key feature of Congress’s broad new health care law — a mandate that virtually every one obtain health insurance by the year 2014 — on Wednesday survived its first constitutional challenge in a federal appeals court, but it did so with little room to spare.  Three judges on the Sixth Circuit Court in Cincinnati took three different positions, but the one that counted the most rejected only the broadest challenge, and suggested that narrower ones might have some success as the law is actually put into effect.

The controlling opinion of the three in Thomas More Law Center, et al., v. Obama, et al. (Circuit docket 10-2388) turned out to be the middle-ground position of Circuit Judge Jeffrey S. Sutton, widely known as a moderately conservative jurist.  He was in control because one member of the panel, Circuit Judge Boyce F. Martin, Jr., would have upheld the insurance mandate more broadly, but the other judge — visiting Senior District Judge James L. Graham of Columbus, Ohio — would have struck it down.

The congressional directive to obtain health insurance, which has only a few narrow exceptions, is considered by the government to be the absolutely crucial part of the sweeping new law designed to alter in basic ways the U.S. market for health insurance. Without it, the government has contended, health insurance for all Americans cannot be paid for. Three federal appeals courts have now held hearings on constitutional challenges to that feature, and the Sixth Circuit got its ruling out before those of the Fourth and Eleventh Circuits.

Ultimately, the feature is likely to be tested in the Supreme Court.  Judge Sutton took note of that prospect, saying that the appeals court is “utterly non-final in this case.”

While Sutton said “the government has the better of the arguments” in the case, the full scope of his 26-page opinion showed that he had voted to uphold the mandate only against what is called a “facial” challenge, although the government will no doubt find many of his remarks encouraging on specific issues in the case.

A “facial” challenge is a claim that the law, as written, cannot be enforced no matter what the factual specifics are in any given case.  It is the hardest kind of challenge to win, because, as Judge Sutton commented, such a claim seeks “to leave nothing standing.”  He concluded that the conservative advocacy group, the Thomas More Law Center, had not made its case with sufficient strength.

In fact, Judge Sutton listed a handful of situations in which he said the insurance requirement could be constitutionally applied, and added: “The valid application of the law to these groups of people suffices to uphold the law against this facial challenge.”

He went on, however, to say that, “while future challenges to the law have hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate as the relevant agencies implement it.”  Ultimately, he wrote, “the policy strengths and weaknesses of using the individual mandate as part of this national legislation” will come to light, and elected lawmakers, rather than judges, will have “the primary say over its utility.”

Judge Martin, in his opinion, used a footnote to respond to the suggestion that future as-applied challenges might succeed.  If the law is valid on its face, Martin wrote, “it is difficult to imagine a circumstance under which an as-applied Commerce Clause challenge to the provision would succeed,” because it would have been established that Congress had the authority to regulate the broader class of activities of which individual situations were only a small part.

Even with its limitations, the Sutton opinion and the decision it spelled out was a significant victory for the Obama Administration and for those who crafted the new law in Congress — because if this turns out to be the way the Supreme Court should rule, the mandate would go into effect and those who oppose it would then be left to file individual lawsuits challenging the way it applied to them, but only to them.

There also was positive symbolism for the government in that the controlling opinion that sustained the law — for the time being, at least — was written by a highly respected judge whose general conservative credentials have never been in doubt, although he is not known as an ideologue.

The Sutton opinion, because of its approach, might well be persuasive to conservative judges on other courts.  While the insurance mandate has been expected to survive its challenge in the Fourth Circuit, there is reason to believe its chances are slimmer in the Eleventh Circuit.

Should appeals courts ultimately take conflicting positions on the mandate, that would make it a virtual certainty that the Supreme Court would step in to make the final decision.  The issue may be important enough in its own right, though, for the Court to conclude that it ought to be the one to give the last word on its validity.

It has been one of the themes of the Supreme Court under Chief Justice John G. Roberts, Jr., to put limits on the use of facial challenges to strike down laws — the same sentiment that led Judge Sutton to his conclusion.

In Judge Martin’s opinion (which, incidentally, appeared first because it contained the judgment of the panel majority upholding the law on its face) went beyond what Judge Sutton had found, and concluded that Congress did have the authority to pass the individual insurance mandate, because health coverage is an economic activity within the national market for such insurance.

Martin, who is known as a liberal judge, accepted the Obama Administration’s argument that Congress had reason to believe that, if people did not have health insurance and insisted on paying their own way when they needed health care, that would have a “substantial effect” on the interstate market for health insurance generallly.  “The practice of self-insuring,” the judge said, “substantially affects interstate commerce by driving up the cost of health care as well as by shifting costs to third parties.”

Moreover, Judge Martin declared, Congress had valid reason for believing that leaving the self-insured outside of federal control “would undercut” its economic regulatory scheme.

This judge also rejected the core argument that challengers to the mandate have been making in all of the courts reviewing the new law’s validity — the argument that Congress may not regulate “inactivity,” and that failing to buy health insurance is “inactivity.”  Martin concluded that Congress could regulate inactivity, if it were related to an economic activity. “Thus,” he said, “the provision is constitutional notwithstanding the fact that it could be labeled as regulating inactivity.”

The third jurist on the panel, District Judge Graham, disagreed with the approaches of both Judges Sutton and Martin, and he concluded that the insurance mandate should not survive even a facial challenge.  Treating the mandate as an attempt to regulate private, personal choices, Graham concluded that that was simply beyond Congress’s power under the Commerce Clause.  He also found that the mandate intruded on the powers of the states, under the Tenth Amendment.

Graham did agree with Judge Sutton on one point: that Congress had not used its taxing power (as opposed to its power over commerce) in adopting the mandate.  Judge Martin, by contrast, concluded that it was not necessary to rule on the tax question.

The federal government had argued, as an alternative way of defending the mandate, that Congress had passed it under its constitutional authority to impose taxes to support “the general welfare.”  The law imposes a financial penalty on anyone who fails to obtain health insurance, when the mandate applies to them.  Judges Sutton and Graham, however, concluded that Congress did not adopt the penalty as a tax, to raise revenue, but as a regulatory measure, a way to enforce the mandate itself.

Judge Graham, in his separate opinion arguing that the insurance mandate would be invalid in all circumstances, saying it was beyond Congress’s power to regulate commerce.  The mandate, he said, is “a novel exercise of Commerce Clause power.  No prior exercise of that power has required individuals to purchase a good or service.”  His opinion questioned the action/inaction dichotomy that has been the central thrust of the constitutional challenges to the mandate, but went on to find that the mandate was simply too sweeping an intrusion into private lives and state authority to withstand a challenge..

Judge Sutton suggested in his opinion that the challengers had offered “a plausible limiting principle” between what Congress can regulate under the Commerce Clause, and what it cannot.  That principle was the activity/inactivity approach.

But he went on to find that, however plausible that dividing line might be, it would not permit a Circuit Court to strike down the mandate no matter the specific circumstance in which it might be applied.  The challenge, Sutton wrote, raised two questions: does the mandate involve a matter that has a substantial effect on interstate commerce — a question he said was easy to answer in favor of finding such an effect — and the harder question of whether there was “something about the novelty of this law,” an order to buy insurance, that would justify striking it down across the board.

In answering that second question, Judge Sutton made a number of remarks suggesting that a decision by an individual to go it alone, rather than buying health insurance, could in fact have an effect on interstate commerce because someone, some day, would have to pay for health care for that person when the need arose.

At the same time, he suggested that the activity/inactivity distinction the challengers had relied upon “is the most compelling” argument made against the insurance mandate.  Much of that discussion, no doubt, will hearten the challengers of that provision.  Indeed, if one stopped reading the Sutton opinion with that discussion, one would assume that he would then go on and strike down the mandate.  Of course, he did not do so.

What he did do was to conclude that the Commerce Clause does not draw a distinction, in terms of congressional power, between regulating action and inaction, activity and inactivity. That distinction is not in the words of the Constitution, Judge Sutton noted, and it may not work as a practical dividing line.

Indeed, the judge goes on to suggest that failing to buy health insurance is, itself, a form of action — the very point that government lawyers have made in defending the insurance mandate.  Sutton wrote: “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.”

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, Health insurance mandate survives — narrowly, SCOTUSblog (Jun. 29, 2011, 1:42 PM), http://www.scotusblog.com/2011/06/health-insurance-mandate-survives-barely/