Before celebrating the recent opinion upholding the so-called individual mandate, supporters of Obamacare should consider that this was “an idiosyncratic and flawed opinion.”
Noting that the controlling opinion in the 2-1 victory for Obamacare was that of Jeffrey Sutton, a George W. Bush appointee, who conceded in his concurrence that the mandate is “a legislative line that Congress has never crossed before,” the Wall Street Journal dissects Sutton’s opinion:
So why-Judge Sutton asks-can’t Congress pass a regulation that says insurance, once voluntarily bought, must be maintained for life? This might be called the “Hotel California” school of regulation: You can check in, but you can never leave.
The problem is that this isn’t the mandate that is now law and was drafted by Congress. This mandate doesn’t include the qualifiers of Judge Sutton’s thought example. It doesn’t control the stream of commerce so much as it compels everyone to enter the stream of commerce and creates commerce. Even if Judge Sutton’s imaginary mandate is constitutional, which is questionable, it isn’t the one that Congress wrote, and facial challenges succeed or fail on the basis of statutory language. And what about people who never buy insurance in the first place?
Judge Sutton also suggests that the individual mandate “is constitutional as applied to individuals living in states with mandates”-currently, only Massachusetts, and justified for states under general police powers-which he says undermines “the notion the mandate is unconstitutional in all of its applications.” But under the federalist system, certain powers are reserved to the federal government and others to the states. One state imposing a mandate doesn’t give Congress the license to impose one on all states.
Given the strangeness and circularity of the Sixth Circuit’s logic, and these new constitutional frontiers, we doubt the Supreme Court will adopt its view. But Judge Sutton does at least put his finger on the legal moment: The Supreme Court “either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so.”
If the Supreme Court doesn’t prove it in this case, federalism will be effectively dead.