As my colleague Ian Millhiser says the “most important part of today’s Sixth Circuit decision upholding the Affordable Care Act isn’t what the court said … the most important part of today’s decision is who made it.”
The best way to get at the significance of this is just that thus far we’ve seen moderate-and-progressive Democrat-appointed judges uphold the law and conservative Republican-appointed judges strike it down. Today’s decision from Judge Jeffrey Sutton breaks that pattern. Sutton is a Republican. And not some kind of weird holdover from Gerald Ford, not some mistake made by Ronald Reagan, not a compromise candidate offered by George H.W.Bush, but a former Scalia clerk who was nominated in 2001 by George W Bush. Senate Democrats made sure he didn’t come up for a vote at that time, but after the GOP win in the 2002 midterms he got his vote in 2003 and secured confirmation by a relative narrow 52-41 vote. Only two Democrats voted for him. He is, in other words, an orthodox conservative. And his voice here not only confirms the constitutionality of the law, but the obvious constitutionality of the law. There’s a lot of serious disagreements in American constitutional law, but whether or not the US Congress has the authority to create social welfare programs and regulate the health insurance industry isn’t one of them.