The Radicalism Of Judge James Graham’s Anti-Health Care Opinion

The Affordable Care Act’s supporters are jubilant after yesterday’s decision rejecting a challenge to the law, and rightfully so. Former Scalia clerk Judge Jeffery Sutton’s total rejection of the plaintiffs’ legal theory is as good a sign as can be imagined that the case against the ACA will only convince a handful of outlier judges.

One of those judges was the dissenting member of the panel, District Judge James Graham, and Graham proved himself to be quite the outlier. At the conclusion of his opinion, Graham openly admitted that he was picking and choosing which Supreme Court cases he wanted to follow:

In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commere [sic] Clause case in Wickard, which had been the law of the land for over sixty years.

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

Lopez and Raich are two matching bookends surrounding Congress’ ability to regulate interstate commerce. Lopez struck down a federal law banning the act of bringing a firearm into a school zone on the grounds that the law had no connection to either economic matters or to activity that crosses state lines. Raich upheld part of a comprehensive economic regulation of illegal drugs. Taken together, the two cases stand for the proposition that nationwide economic regulation fits comfortably within Congress’ authority, while wholly local and non-economic regulations are far more constitutionally suspect.


Judge Graham apparently feels like Lopez set the nation on a positive path towards deregulation, and Raich wrongly “interrupted” our trip down that path, but this is an entirely inappropriate statement for a lower court judge to make in a legal opinion. Raich is binding precedent no less than Lopez, and judges are simply not allowed to pick and choose which laws they want to follow.

Lest there is any doubt that this is what Judge Graham is up to, the remainder of his opinion leaves no question that he has no intention of following Raich. Graham cites to Justice O’Connor’s dissent in Raich four different times — even though a dissenting opinion is, by definition, a view that departs from the controlling law that judges are required to follow. At one point, he even rejects one of DOJ’s arguments because it is inconsistent with an opinion Justice Thomas wrote that was joined by no other justice:

The government fails to show why a view of cost-shifting caused by risky conduct should fare any better. The problem with the government’s line of reasoning here is that it has no logical end point, and it illustrates precisely Justice Thomas’s concerns with the substantial effects test. See Morrison, 529 U.S. at 627 (Thomas, J., concurring) (calling the test “rootless and malleable”).

Judges are simply not allowed to ignore the views of eight Supreme Court justices because they’d rather follow the outlier view of just one. And the Thomas opinion Graham relies upon here is a particularly strange one to cite favorably. The “substantial effects test” is the constitutional doctrine which, among other things, allows Congress to prevent a barbecue restaurant in Alabama from only serving white patrons. Taken to it’s logical end, Thomas’ assault on this substantial effects test endangers the nationwide ban on whites-only lunch counters.

Simply put, Judge Graham’s job is to follow the law whether he likes it or not. He failed miserably at that basic task yesterday.