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.

Speaking at a Republican breakfast in New Hampshire last week, former House Speaker Newt Gingrich offered some policy proposals straight out of his 1994 playbook:

As the Republican nominee, I will have a contract with America. It will have seven bills. One of the seven bills will be a Tenth Amendment enforcement act to take the Constitution and return power to the states and the people thereof, and move it back out of Washington.

Watch it:

As George Zornick explains, Gingrich has made states rights tentherism, the belief that anything Congress does that conservatives don’t like violates the Tenth Amendment, a centerpiece of his campaign. But even though nearly every single GOP lawmaker’s lips presently drip with the words of tentherism and states rights, Gingrich’s proposed Tenth Amendment enforcement act is really nothing more than a reminder that Republicans will abandon their obsession with the Tenth Amendment the minute it becomes convenient for them to do so.

This is because Gingrich’s proposed Tenth Amendment bill is nothing more than a recycled idea from the last time Gingrich was relevant in American politics. While Gingrich was speaker, Republicans proposed the Tenth Amendment Enforcement Act of 1996, which, among other things, “requires the courts to interpret Federal statutes and regulations so as not to preempt State or local laws.” In other words, this bill would have instructed the courts to back away from a series of doctrines the Supreme Court has created which effectively invalidate state laws that touch on areas that are also regulated by the federal government.

Five years after this bill was introduced, however, Republicans seized control of the White House, and the party’s position on preemption changed virtually overnight. President George W. Bush’s Supreme Court appointees fought tooth and nail to give drug companies, banks, and the tobacco industry sweeping immunity from state law through preemption — often with the public and enthusiastic support of Bush’s Department of Justice. More recently, the House GOP rallied behind a tort reform proposal despite consistent claims by leading tenthers that this kind of federal government takeover of the state tort system violates the Constitution.

It will be interesting to see whether Gingrich’s new Tenth Amendment bill contains the same language regarding preemption — much of which can be embraced by progressives — that was in the bill’s 1996 version. One thing is absolutely clear from the GOP’s more recent position on preemption. Republicans don’t actually care all that much about the Tenth Amendment; they’re just happy to use it as a rhetorical bludgeon against federal laws that they don’t like.

Acting Solicitor General Neal Katyal

Federal law requires state Medicaid programs to pay doctors enough money to ensure that Medicaid patients will have access to the same quality of care as everyone else. Yet the solicitor general’s office filed an amicus brief last week siding with parties that want to render this law almost completely unenforceable:

Federal law says Medicaid rates must be “sufficient to enlist enough providers” so that Medicaid recipients have access to care to the same extent as the general population in an area.

In a friend-of-the court brief filed Thursday in the Supreme Court, the Justice Department said that no federal law allowed private individuals to sue states to enforce this standard.

Such lawsuits “would not be compatible” with the means of enforcement envisioned by Congress, which relies on the secretary of health and human services to make sure states comply, the administration said in the brief, by the acting solicitor general, Neal K. Katyal.

Essentially, DOJ claims that the Medicaid law cannot be enforced by lawsuits brought by individual Medicaid providers. Only the Obama Administration can require states to follow the law.

There are all kinds of problems with this claim, beginning with the fact that it conflicts with two well-established Supreme Court precedents. More importantly, the rule proposed by DOJ would eviscerate enforcement of Medicaid law because the administration neither has the resources to discover every violation of the statute nor sufficient resources to bring an enforcement action where ever one is needed.

Worse, what happens when President Obama leaves office — potentially to be replaced by someone much more hostile to Medicaid? If a future Administration shows no interest in enforcing the Medicaid statute, then entire provisions of law could effectively cease to exist until a more progressive president is elected.

Earlier this year, the Arizona Legislature considered a sweeping immigration omnibus bill that was often referred to as “SB-1070 on steroids.” The legislation would have required parents to provide proof of their childrens’ immigration status when enrolling them in school, prevented undocumented immigrants from driving, and seized their car if they did, among other things. The measure failed, but the Arizona Republic points out today that one smaller bill managed to pass:

Starting July 20, state and local government entities no longer can recognize photo-ID cards issued by foreign consulates. The cards often are the sole form of photo identification for individuals living in another country who do not have a passport or a local driver’s license.

Some state lawmakers have been trying to pass the law for years as part of a larger push to keep illegal immigrants out of Arizona. They say the ID cards are too easy to fraudulently attain and give the inaccurate impression that all cardholders are in the country legally.

State Sen. Ron Gould (R), who sponsored the bill, was motivated by the concern that the Mexican government does not adequately verify the identity of individuals before issuing cards. “This is not a secure method of ID,” Gould said.

The Mexican consulate denied Gould’s claims, stating that cards are issued “solely upon a rigorous confirmation of nationality, local residence and identity.” Meanwhile, the law’s critics believe that it will only lead to more fraud and insecurity. While foreign nationals will continue to be able to use the consulate cards at private businesses, individuals will no longer be able to use them to obtain a library card or as an official means of identification during an investigation. Immigration advocates argue this will largely dissuade undocumented immigrants from reporting crimes.

Connie Andersen of the Valley Interfaith Project said, “People need a way to identify themselves in order to report crime when they are a victim or witness, and they were accustomed to using (consular) ID…This tells them they have to put that away. Some people don’t have alternative forms of ID. Now, they’re not sure what to do.”

Lawmakers have been trying to pass this law for more than 10 years. Former Gov. Janet Napolitano (D) vetoed similar bills in the past over concerns that “if immigrants can’t use consular cards, they’re likely to seek forgeries of drivers’ licenses and social security cards.” “While it is positioned by the bill’s sponsor as a quote – anti-illegal immigration measure – it’s an anti-law enforcement measure,” Napolitano reasoned in 2007.

Over 30 states accept the consulate-issued photo-ID cards for foreign nationals. Indiana, however, recently passed a law that makes it illegal to use the IDs. The ACLU filed a lawsuit challenging Indiana’s measure, stating, “This law marginalizes entire communities by criminalizing commonly accepted forms of identification. The law also undermines our most cherished constitutional safeguards by putting Indiana residents at risk of unlawful warrantless arrests without any suspicion of wrongdoing, much less criminal activity.”