Judge Jeffrey Sutton is a George W. Bush appointee and a former law clerk to conservative Justice Antonin Scalia. He served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group, and was one of the nation’s leading crusaders for expanding the role of the states at the federal government’s expense. Prior to becoming a judge, Sutton 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 — even successfully arguing major states’ rights cases in the Supreme Court. So he is exactly the kind of person who would be extremely sympathetic to the conservative claim that the Affordable Care Act exceeds Congress’ lawful authority.
And yet, Sutton’s opinion today said something else entirely:
On the merits, this case presents two distinct questions: Does the individual mandate survive the substantial-effects test? And, if so, is there something about the novelty of this law—compelling the purchase of health insurance—that warrants striking it down nonetheless?
The initial question is the easier of the two, as the breadth of the substantial effects doctrine and the nature of modern health care favor the validity of this law. No matter how you slice the relevant market—as obtaining health care, as paying for health care, as insuring for health care—all of these activities affect interstate commerce, in a substantial way. […]
Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. […] Second, the promise offered by the action/inaction dichotomy—of establishing a principled and categorical limit on the commerce power—seems unlikely to deliver in practice. Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists.
To translate a bit, Sutton concluded that the heart of the assault on the Affordable Care Act — the claim that a law encouraging people to buy insurance is unconstitutional because Congress cannot compel people to take this unwanted action — has no basis in the “text of the Constitution,” and it rests on a legal distinction that is utterly incoherent. And this comes from one of the most conservative members of the federal bench.
To be fair, Sutton also rested his decision on something known as the facial/as-applied distinction. 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, a party must show that “no set of circumstances exists under which the Act would be valid,” and Sutton floated the possibility that someone who has achieved the miraculous task of avoiding the national health care market altogether may be able to exempt themselves from the law through an as-applied challenge brought at a future date. But Sutton’s harsh words for the basic legal theory underlying the plaintiffs’ case is a body blow to these lawsuits.
The case against the Affordable Care Act is so weak that one of the court of appeals’ most conservative judges — a judge who devoted much of his life to shrinking federal power — just rejected it. Now would be a good time for the nation to collectively stop pretending that these lawsuits have any merit whatsoever.