Sixth Circuit Judge Jeffrey Sutton

To date, no court of appeals has opined on whether the Affordable Care Act is constitutional, and the trial judges — “district judges” as they are known in the federal system — who have weighed in on the issue have all split along party lines. That pattern seemed almost certain to continue after today’s oral argument in the U.S. Court of Appeals for the Sixth Circuit. Because of excessive caseloads, district judges are occasionally asked to sit on appeals panels, and the district judge asked to hear today’s case — Reagan-appointed Judge James Graham — was the only member of the three-judge panel who seemed eager to strike down health reform.

Graham’s leaning is not surprising. He previously held on states rights grounds that state employers are immune to the Family Medical Leave Act, only to have the Supreme Court reject this view in an opinion by conservative Chief Justice William Rehnquist. What was surprising, however, is that Graham may be alone among the three judges in his apparently belief that the ACA is unconstitutional.

The panel’s senior member is Judge Boyce Martin, a Carter appointee who is more likely to ride a unicorn out of the courtroom than to accept the utterly meritless arguments against the ACA. Then the third panelist is Judge Jeffrey Sutton.

Sutton is one of the judiciary’s most conservative members and a former activist for state’s rights issues. He devoted much of his career to preventing people with disabilities, religious minorities, and even children who are illegally deprived of Medicaid coverage from holding states accountable in federal court, and he served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group. More recently, Judge Sutton was unanimously reversed by the Supreme Court for ignoring a binding precedent he argued and won before the justices in order to hand a potentially election-changing victory to the Ohio Republican Party.

And yet Sutton seemed deeply torn between his own personal sympathy with the plaintiffs’ anti-health care arguments and the fact that there just isn’t any way to strike down this law under the Constitution or the Supreme Court’s precedents.

The plaintiffs’ sole claim is that the ACA’s provision requiring most Americans to either carry health insurance or pay slighty more income taxes violates the Constitution because that amounts to compelling people to buy a product, and compelling a purchase somehow is not allowed.  Sutton called this argument “ingenious” and praised it as a rule that the “average American understands,” but he also doubted that such a rule — if it exists — should apply to health insurance. As Sutton pointed out, nearly everyone will need to buy health care at some point because they are sick or injured, and the costs can be catastrophic. So the ACA doesn’t require people to buy anything they won’t already purchase, it just nudges them to finance that purpose through health insurance rather than paying out of pocket.

On three separate occasions, Sutton floated a potential way to “split the baby” in this case. The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.”

Because the case essentially comes down to whether a person who is not currently participating in the health care market can be made to enter it, Sutton repeatedly suggested that this kind of case cannot be resolved by a facial challenge. Many people currently are insured, or are currently receiving treatment, or are very likely to receive treatment in the imminent future. All of those people are in the health care market, and should be subject to regulation even under the plaintiffs’ legal theory. By contrast, a healthy, independently wealthy individual with no insurance might not presently be participating in the health care market, and so they might be able to bring an as-applied challenge claiming that the law cannot apply to them — and only them. Thus, the ACA would be constitutional for virtually everyone, and people in exceptionally rare circumstances would be immune.

Now let’s be clear. Sutton is a deeply conservative judge. He has a history of manipulating the law to benefit the GOP, and he had plenty of skeptical questions for the solicitor general today. The smart money is still against Sutton voting to uphold the law. Moreover, the panel strongly hinted prior to today that it might dismiss the case on procedural grounds and skip the merits altogether.

Nevertheless, the fact remains that one of the judiciary’s leading conservatives — and a judge with a long history of states’ rights activism to boot — seemed worried that the case against the ACA is riddled with holes. He may vote to strike the ACA down, but he’ll have to stretch the law beyond recognition to do so.