In the latest episode of rampant conservative judicial activism, the 11th Circuit Court of Appeals today overturned the health care law’s mandate requiring individuals to buy insurance. It is yet another case of judges, at the behest of conservatives, doing the very thing conservatives claim to abominate: making their own law and ignoring the judgments of branches of government elected democratically by the voters.
Fortunately, this is not the last word -- this issue is definitely going to the Supreme Court -- and in June, the 6th Circuit ruled in favor of the mandate.
Rather than going on about what’s wrong with the 11th Circuit’s ruling, I’d prefer to quote part of the powerful dissent offered by Judge Stanley Marcus. He made perfectly clear why, in gutting the health care law, the 11th Circuit majority reached far beyond its power. Here’s the core of Marcus’ argument:
Today this Court strikes down as unconstitutional a central piece of a comprehensive economic regulatory scheme enacted by Congress. The majority concludes that Congress does not have the commerce power to require uninsured Americans to obtain health insurance or otherwise pay a financial penalty. The majority does so even though the individual mandate was designed and intended to regulate quintessentially economic conduct in order to ameliorate two large, national problems: first, the substantial cost shifting that occurs when uninsured individuals consume health care services -- as virtually all of them will, and many do each year -- for which they cannot pay; and, second, the unavailability of health insurance for those who need it most -- those with pre-existing conditions and lengthy medical histories.
In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, “to prescribe the rule by which commerce is to be governed.” It has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court’s expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that “commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.”
The approach taken by the majority has also disregarded the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers. The circumspection this task requires is underscored by recognizing, in the words of Justice Kennedy, the long and difficult “history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era.”
Mark those words “caution, restraint and great humility.” They are exactly the virtues that so many conservative judges these days disdain.
But one conservative who lived by the doctrines he claims to uphold was Judge Jeffrey Sutton from the 6th Circuit who ruled in favor of the mandate. He noted: “Few people escape the need to obtain health care at some point in their lives, and most need it regularly.” He added: “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.” And here was a nice distinction that the 11th Circuit should have noticed: “]n]ot every intrusive law,” Sutton wrote, “is an unconstitutionally intrusive law,”
Sutton is a well-known conservative highly respected by his conservative colleagues. Here’s hoping that at least one of the five conservative Supreme Court justices will pay attention to him and not to the 11th Circuit.