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Analysis: Influential conservative judge supports health insurance mandate

This article first appeared in the St. Louis Beacon, June 30, 2011 - The most interesting thing about Wednesday's federal appeals court decision upholding the individual mandate in the federal health-care law was that one of the judges in the majority was a leading and influential conservative, Judge Jeffrey S. Sutton.

Shortly after the 6th Circuit U.S. Court of Appeals in Cincinnati announced its 2-1 decision on Wednesday, the blogs and listservs frequented by constitutional law professors were abuzz about Sutton voting to uphold the mandate.

Sutton, a 2001 appointee of President George W. Bush, was narrowly confirmed over 45 no votes in the Senate. The votes against him grew out of his background favoring states' rights and challenging civil rights and disabilities laws. He also clerked for Justice Antonin Scalia.

Sutton said that the individual mandate was different from the two situations where the Supreme Court has limited Congress' commerce power in the past -- the decisions striking down federal laws banning guns from schools and addressing the problem of violence against women. The Supreme Court had said that those two laws did not involve economic matters and couldn't be regulated under Congress' commerce power.

But Sutton wrote that "there was little doubt that the national regulation of a $2.5 trillion industry, much of which is financed through health insurance ... sold by national or regional health insurance companies, is economic in nature."

Sutton said he considered the challenge to the individual mandate to be a substantial one, presenting an issue never before considered by the court: whether Congress can regulate inaction as well as action under its power to govern interstate commerce. In other words, can Congress force people to buy health care insurance or just regulate those already in the insurance market.

But, in the end, the action/inaction distinction is unpersuasive, he decided. "If Congress has the power to regulate the national healthcare market, as all seem to agree, it is difficult to see why it lacks authority to regulate a unique feature of that market by requiring all to pay now in affordable premiums for what virtually none can pay later in the form of, say, $100,000 (or more) of medical bills prompted by a medical emergency."

He added that he wasn't sure that refusing to buy health insurance was inaction. "...The notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident," he wrote. "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)."

The judge also pointed out that the Supreme Court had approved "equally substantial, if not more substantial, incursions on the general police powers of States and the autonomy of individuals." He cited two leading cases on Congress' commerce power. In one, Wickard v. Filburn, the court said Congress could regulate wheat that a farmer wanted to grow for consumption on his own family farm. In the other, Gonzales v. Raich, the court said Congress could regulate marijuana a California woman wanted to grow in her house for self-medication.

"If, as Wickard shows, Congress could regulate the most self-sufficient of individuals -- the American farmer -- when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it. And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering into any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care."

Sutton also took on the argument that if Congress can force people to buy health care it can interfere with individual liberty by forcing them to buy vegetables. Sutton pointed out that states clearly can force individuals to buy health care insurance just as they can require auto insurance. Concern about individual liberty doesn't make those state actions unconstitutional, so why should liberty concerns make the federal health insurance mandate an unconstitutional violation of individual liberty?

Sutton suggested at one point that the U.S. Supreme Court could throw out the individual mandate based on a reinterpretation of past commerce cases, but he said that federal appeals courts do not have the latitude to make that kind of reinterpretation.