Judge Jeffrey Sutton concurred in the judgment of the Sixth Circuit that the Patient Protection and Affordable Care Act is constitutional on its face. However, he did not join Judge Martin's opinion upholding the law, and he left open the door to future as-applied challenges to the individual mandate.
Judge Sutton reached the conclusion that the individual mandate of the Affordable Care Act is constitutional for many of the same reasons expressed by Judge Martin, as described in the previous post. For example, Judge Sutton expressly finds that the market that is regulated by the PPACA substantially affects interstate commerce:
No matter how you slice the relevant marketâas obtaining health care, as paying for health care, as insuring for health careâall of these activities affect interstate commerce, in a substantial way.
Judge Sutton spends a considerable portion of his opinion addressing the plaintiff's argument that Congress lacks the authority to force people to purchase a product that they don't wish to have. He thoroughly analyzes the plaintiff's contention that while Congress has the authority to regulate economic activity, it lacks the power to regulate economic inactivity. On the one hand, Judge Sutton seems to reject both the distinction itself and it applicability to this case; on the other hand, he leaves open the door to a future "as applied" challenge to the law on this ground.
In support of the government's position, Judge Sutton found that the activity being regulated by Congress through the individual mandate is the practice of "self-insurance" – and that this activity in and of itself has a substantial effect on interstate commerce:
There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something elseâgood fortune or the good graces of othersâwhen the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.In choosing how to regulate this group, Congress also did not exceed its power. The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisite income to pay now rather than later for health care. Faced with $43 billion in uncompensated care, Congress reasonably could require all covered individuals to pay for health care now so that money would be available later to pay for all care as the need arises. Call this mandate what you willâan affront to individual autonomy or an imperative of national health careâit meets the requirement of regulating activities that substantially affect interstate commerce.
Judge Sutton expresses a number of reasons for rejecting the "activity/inactivity" dichotomy altogether:
Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? Noâfor several reasons.First, the relevant text of the Constitution does not contain such a limitation. …
Second, the promise offered by the action/inaction dichotomyâof establishing a principled and categorical limit on the commerce powerâseems unlikely to deliver in practice. … Does this test apply to individuals who have purchased medical insurance before? Those individuals have not been inactive in any sense of the word when it comes to the medical-insurance market, yet plaintiffs say that Congress may not regulate them. …
He also argues that self-insuring for health care is not "inactivity":
The mandate is one way of ensuring that all Americans have money to pay for health care when they inevitably need it. In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident. If done responsibly, the former requires more action (affirmatively saving money on a regular basis and managing the assets over time) than the latter (writing a check once or twice a year or never writing one at all if the employer withholds the premiums). …No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk.
Judge Sutton also acknowledges the intuition, common to most Americans, that it is just wrong for the government to require people to purchase a product that they don't want. The problem, as Judge Sutton recognizes, is that a constitutional principle such as this protecting individual liberty would seem to be more at home under the Due Process Clause rather than the Commerce Clause – but no-one is suggesting that the court should revive the doctrine of "economic substantive due process" that reigned from 1887 to 1937 and that was used by the Supreme Court to invalidate a host of laws protecting workers, including minimum wage and maximum hour laws, collective bargaining laws, and child labor laws. Judge Sutton stated:
Why construe the Constitution, moreover, to place this limitationâthat citizens cannot be forced to buy insurance, vegetables, cars and so onâsolely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies? Few doubt that the States may require individuals to buy medical insurance, and indeed at least two of them have. See Mass. Gen. Laws 111M § 2; N.J. Stat. Ann. § 26:15-2. The same goes for a related and familiar mandate of the Statesâthat most adults must purchase car insurance. Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution.
All that Judge Sutton says in his opinion up to this point seems consistent with Judge Martin's opinion declaring the law to be constitutional. However, Judge Sutton leaves open the door a crack to a plaintiff in the future who might challenge the law as applied, rather than on its face. Judge Sutton states that the plaintiffs' facial challenge must fail because the individual mandate is constitutional as applied to four categories of persons:
For now, whatever else may be said about plaintiffsâ activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications. Congress may apply the mandate in at least four settings: (1) to individuals who already have purchased insurance voluntarily and who want to maintain coverage, but who will be required to obtain more insurance in order to comply with the minimum-essential-coverage requirement; (2) to individuals who voluntarily obtained coverage but do not wish to be forced (at some indeterminate point in the future) to maintain it; (3) to individuals who live in States that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate or abide by other requirements of the Affordable Care Act; and (4) to individuals under 30, no matter where they live and no matter whether they have purchased health care before, who may satisfy the law by obtaining only catastrophic-care coverage. The valid application of the law to these groups of people suffices to uphold the law against this facial challenge.
I do not find Judge Sutton's final reservation allowing for a possible future as-applied challenge to be persuasive. The remainder of his opinion argues persuasively that "self-insurance" is activity that, in the aggregate, substantially affects interstate commerce, and that neither the Commerce Clause nor any other provision of the Constitution contains an "individual liberty" exception to economic legislation. He expressly acknowledges that under the Commerce Clause Congress has both the power to "prescribe" as well as the power to "proscribe." In substance this is a concurring opinion, not simply an opinion concurring in the judgment as it is styled. It is a thoughtful and persuasive refutation of the "inactivity" argument invoked by the opponents of this law, and it will be carefully consulted by other appellate judges as well as the justices of the Supreme Court.
In the next post I will analyze Judge Graham's dissenting opinion that would declare the individual mandate unconstitutional.
Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790
{ 2 comments }
Thanks for your analyisis.
The blogger and the judge don't realize now many people have to live today, after all both the judge and the professor have jobs and income.
The opinion states:
"One option is to save money so that it is there when the need for health care arises. The other is to save nothing …"
There is a third case: the person who has no money to save. Self insurance for such people is not a choice or activity but a circumstance over which they have no control.
I see an as-applied case from someone who doesn't qualify under medicaid for exemption from the insurance requirement but not enough remaining income after housing and taxes to afford the minimal policy under Obamacare.
At the moment we don't really know any of these numbers, in particular how much the federal and governments will actually pay. I would speculate that this group could be very large and plaintiffs not hard to find.
In 2014, I see these people saying that not doing what they can't do isn't activity and doesn't rise to "commerce" within the meaning of the commerce clause.
I, and I think Scalia, see "activity" as implicit in the word "commerce."
I don't think we will know who wins the war over Obamacare until the courts address these claims.
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