Today the 6th Circuit Court of Appeals upheld the constitutionality of the Affordable Healthcare Act.
The court ruled on two of the most important substantive issues that have been raised in dozens of other lawsuits. The first is whether the law falls within the interstate commerce clause of the Constitution:
…the breadth of the substantial effects doctrine and the nature of modern health care favor the validity of this law. No matter how you slice the relevant market—as obtaining health care, as paying for health care, as insuring for health care—all of these activities affect interstate commerce, in a substantial way.
The second question is the constitutionality of the insurance mandate:
Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce.
And look who wrote the opinion:
Judge Jeffrey Sutton is a George W. Bush appointee and a former law clerk to conservative Justice Antonin Scalia. He served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group, and was one of the nation’s leading crusaders for expanding the role of the states at the federal government’s expense.
This ruling is significant as it is the first of four pending decisions from Circuit Courts of Appeals on Obamacare. This case originated in the E. Michigan District court as Thomas More Law Center v. Obama in which Judge George Caram Steeh dismissed the lawsuit on the merits. The 6th Circuit Court has now upheld that decision.
There are so many pending lawsuits against the Affordable Healthcare Act that it is difficult to get the big picture. I spent part of this morning trying to get my head wrapped around them. Here is what I came away with.
Besides today’s ruling, there are four other lawsuits at the Circuit Court level.
One of the pending decisions is Florida v. HHS that includes 26 state Attorneys General, including our own Rob McKenna. The law was found to be unconstitutional by Florida District Court Judge Roger Vinson. The ruling was appealed to the 11th Circuit Court of Appeals, and arguments were heard earlier this month.
Additionally, there are two cases pending in the 4th Circuit Court of Appeals: Virginia v. Sebelius and Liberty University v. Geithner. The former began in the E. Virginia District Court where Judge Henry E. Hudson ruled the law unconstitutional. The latter began in W. Virginia District Court where Judge Norman K. Moon ruled the law constitutional.
The only other ruling on the merits from a District Court comes from Seven-Sky v. Holder heard in the D.C. District court. Judge Gladys Kessler found the law constitutional. The appeal before the D.C. Court of Appeals awaits oral arguments that will take place no earlier than August.
Those are, so far, the only cases where a decision has been made on the merits. The score so far:
- District Courts: constitutional 3; unconstitutional 2
- Circuit Courts: constitutional 1; unconstitutional 0
There are several other cases before Courts of Appeals, New Jersey Physicians v. President just argued in the 3rd, Baldwin v. Sebelius in the 9th that will be argued in July, and Kinder v. Geithner in the 8th that will be heard no earlier than August. My understanding is that these cases were dismissed for lack of standing (not merit), so that a ruling in favor of the the plaintiff would simply send the case back to the District court for a ruling on the merits.
There are six or seven other cases at the District Court level at various stages of litigation. It seems like many of these will be dismissed for lack of standing, but rulings on the merits may well arise from some of them.
Today’s decision is a Big Fucking Deal in that a Judge with a very conservative record authored the majority opinion against the two main “theories” found in many of the other lawsuits. The decision will be binding on one of the current District Court cases, and will likely be be used as an advisory precedent in other cases.
Finally, here in Washington, this decision must be considered something of a blow to gubernatorial candidate Rob McKenna (R), who went against the wishes of the Governor and a majority of the people (e.g. the March 2010 Washington Poll) by participating in the AG lawsuit (Florida v. HHS). Indeed, a recent SurveyUSA poll found that 40% of those polled were less likely to support McKenna compared to 36% more likely to support McKenna because of the lawsuit. A loss will make McKenna’s participation look like a quixotic waste of time and resources.