Conservative Bush Appointee Upholds Affordable Care Act

Today, the Patient Protection and Affordable Care Act (PPACA) withstood is most critical test yet: a three-judge Sixth Circuit panel composed of two conservative, Republican-appointed judges and one Democratic-appointed judge.

Challenges to the health-care law have been brought by conservative state attorneys general, bringing the novel argument that PPACA "regulates inactivity" and is therefore unconstitutional.

In upholding PPACA, Judge Jeffrey Sutton – noted as one of the most conservative of George W. Bush’s appointees and “the leading advocate in private practice of the federalism revolution” – ruled that the Act was within the authority given to Congress by the Constitution's Commerce Clause (Article 1, Section 8, Clause 3).

Before joining the bench, Judge Sutton argued that the Americans with Disabilities Act, Violence Against Women Act, Age Discrimination in Employment Act, Clean Water Act, Religious Freedom Restoration Act, and other civil rights statutes went beyond federal power.

Despite his clear record of challenging Congressional authority, Judge Sutton today wrote:

Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.

Judge Sutton concluded by observing that:

Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution [as early debates over the First National Bank]. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

A similar challenge to PPACA is currently before the Fourth Circuit.

The full Sixth Circuit opinion is available here. The ultimate fate of the Patient Protection and Affordable Care Act is expected to be decided by the Supreme Court, possibly as early as next term.