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A Closer Look at Obama's Big Legal Win on Health Reform
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| Contributor | Brandonius Maximus |
| Last Edited | Brandonius Maximus Jun 30, 2011 03:48pm |
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| Category | Analysis |
| Author | Massimo Calabresi |
| News Date | Thursday, June 30, 2011 09:45:00 PM UTC0:0 |
| Description | The majority opinion by a 6th circuit panel Wednesday upholding Obama’s health care reform law is a victory for the administration on its face. But to understand just how big a victory it is, you have to read the concurring opinion by Circuit Judge Jeffrey Sutton. Sutton, a former clerk to Supreme Court Justice Antonin Scalia and a powerful figure on the right wing of the 6th circuit, meticulously destroys the central and essential argument of the opponents of Obama’s healthcare law.
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When you read Sutton’s concurring opinion, at first it doesn’t look as if he intends to defend the law’s constitutionality particularly strongly. For starters, he rejects the administration’s back-up argument: that the penalty for not buying insurance effectively makes it a tax, and so part of Congress’ unchallenged power to raise revenues. And he spends time pointing out the ways the Supreme Court could knock down the law that the circuits can’t, thanks to the top court’s ability to set limits on previous decisions.
But then he launches into a 21-page proof that the Constitution doesn’t limit Congress power to regulate inaction the same way it regulates action. First, he says, “the relevant text of the Constitution does not contain such a limitation.” Second, distinguishing between inaction and action under the healthcare law is harder than it seems. What if someone previously had healthcare and then dropped it so he could free-ride on the system? Under the plaintiff’s own argument, it would be constitutional to make him buy healthcare because he had already “entered the stream of commerce”. Third, precedent exists for regulating people who aren’t actively participating in a market: one of them, a case outlawing growing marijuana for personal use, was written by Scalia. Fourth, everyone agrees Congress could force someone to buy health insurance the moment they seek care at an emergency room because they would then be entering the market; |
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