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Thursday, July 28, 2011

The Affordable Care Act Reaches the Supreme Court ... Again

The Thomas More Law Center – a tax-exempt, right-wing litigation group notable for its assaults on reproductive choice, LGBT rights, and Islam – has brought its challenge to the Patient Protection and Affordable Care Act to the Supreme Court. The Center was dealt a major blow last month when a Sixth Circuit Court of Appeals panel led by Judge Jeffrey Sutton, one of the most conservative George W. Bush appointees and a law clerk to Justices Lewis Powell and Antonin Scalia, upheld the health-care law by a 2-1 vote.

While the challenge is the first following an appellate court decision, the Supreme Court has already declined to hear prior direct appeals from lower court decisions upholding the Affordable Care Act.

The Sixth Circuit rejected the plaintiff’s argument that the Affordable Care Act “regulates inactivity,” and held that the law was within Congress’ Commerce Clause authority. Judge Sutton’s lead opinion is especially crucial, as he was known as “the leading advocate in private practice of the federalism revolution” before joining the federal bench, and might catch the attention of the prevailing conservative bloc on the Supreme Court. He was also the first Republican-appointed judge to rule in favor of the Affordable Care Act.

It is common practice for the Supreme Court to await divided circuit court decisions on a law before hearing a case. However, given the importance of the Affordable Care Act and the likelihood of further appellate court rulings in the coming weeks and months, the Court may take an early opportunity to resolve the important questions raised by the health-care litigation.

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