Wednesday, June 29, 2011

Sixth Circuit upholds "Obamacare"

Reports ThinkProgress, tho it sounds like it was a split op. No link to the op yet.

... How Appealing has it. The dissenter as to the individual mandate is a senior district judge ... I don't know how they assign these things, but it seems an important case for a district judge to play appellate court on.

More when I get a chance to read it, or read about it!

... A good place to read about it is the ACA Litigation Blog, whose first post on the decision is followed by a handy summary.

... One thing the ACA litigation has highlighted is that some Republican district-court judges don't understand their jobs. Judge Graham's dissent today joins the trend.
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 Commerce 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.
Isn't that a ... remarkable thing for a lower-court judge to write? Judge Sutton, who seems to remember his job description, may've had Graham's dissent in mind when he wrote this:
The Supreme Court can decide that the legend of Wickard has outstripped the facts of Wickard--that a farmer’s production only of more than 200 bushels of wheat a year substantially affected interstate commerce. See Wickard, 317 U.S. at 114. A court of appeals cannot. The Supreme Court can decide that Raich was a case only about the fungibility of marijuana, see Raich, 545 U.S. at 18–19, not a decision that makes broader and more extravagant assertions of legislative power more impervious to challenge. A court of appeals cannot.


  1. From the sound of the opinion, the court most certainly did not "uphold" the mandate - they simply rejected the Plaintiff's facial challenge. Quite a difference there.

  2. Well, no, actually, if you read it. If a facial challenge is what's before the court, then that's what it decides.

    Judge Sutton's op does leave open an as-applied challenge, but it's difficult to think what that could be.

    I do like the spin, though: since the provision doesn't kick in until 2014, the ACA can't be upheld!