Circuit Court upholds constitutionality of Affordable Health Care for America Act

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.


  1. 1

    Michael spews:

    That’s good news on the legal front.

    The Daily Yonder has a short post up of what the Affordable Healthcare Act will do for rural America. I’ve just grabbed a couple bullet points.
    • The act sets us Area Health Education Centers, which will help steer rural people into health care jobs. The idea is that it will be easier to train and keep rural residents in health care professions rather than try to convince city dwellers that they need to transfer to much smaller towns.

    • The bill will fund the National Health Care Service Corps, another program aimed at encouraging health care workers to locate in underserved areas.

    • The bill sets up a rural residency program. Most residencies (for doctors) are in cities, where doctors “learn how to do urban medicine,” explained Steph Larsen, who is with the Center for Rural Affairs. This new program will set up residencies for doctors who want to learn to do rural medicine.

    (Yes, the medicine is the same, rural and urban. But rural docs needs to have a broader array of skills.)

    • The law has a 10% incentive payment for doctors who do primary care in underserved areas.

  2. 2

    rhp6033 spews:

    The timing is such that the 6th Circuit Ct. of Appeals decision would be ripe for appeal to the U.S. Supreme Court for the next term, assuming that the court accepts the case for arguments.

    For those of you who don’t know, the Supreme Court is required to excercise it’s appellate jurisdiction in only a small fraction of cases, for most cases it is discretionary. The court could decide to NOT issue a Writ of Certiorrari, (sp?) and let the Court of Appeals judgement stand.

    One of the problems it has is that it would usually like to have more of the pending cases resolved at the appellate level, so that it’s decision would resolve any confusion over differing results in different appealant court jurisdictions. I’m not sure how many of the cases would reach that point in time to be combined together by the court for review.

    But assuming that at least four justices of the right-wing block vote against the law, and the four more liberal judges vote in it’s favor – is there a swing vote which would tip the balance in favor of the law? Which justice is most likely to offer that swing vote?

  3. 3

    rhp6033 spews:

    # 1: One of the primary benefits of the bill is simply providing insurance benefits.

    Farming is an inherently dangerous occupation, considering all the heavy machinery with open blades that they encounter. Personal injury attorneys say that recovering significant damages in front of a rural jury is a difficult task: most of the jury members are missing one or more digits themselves, and they never recieved any compensation for their injury.

    Lots of farm families have at least one member of their family who’s primary task is to have a job which provides health insurance that can be expanded to include the entire family (usually by paying a large share of the premium). This is no small undertaking, as that person may have to travel long distances daily to commute to their job, and they may have to take whatever jobs they can find which provide the benefit – irregardless of other factors such as job satisfaction, pay, working conditions, etc.

    A couple of decades ago they had a series on PBS called “The Farmer’s Wife”, where the husband worked days in a metal fabrication facility and farmed during the evening by tractor light, she raised the kids and cleaned homes on the side. It was tough to watch, it was a hard life by any standard.

  4. 4

    Xar spews:

    @Darryl: Calling them “Circuit Courts” is a bit jarring. The proper terminology is “Circuit Courts of Appeals” or “Federal Courts of Appeals.”


  5. 5


    In the mean time, our Congressman seems unable to provide leadership on this issue even though he has touted healthcare as his issue for many years.

    I did just receive email from Jim McDermott telling me he needs $3000 for his campaign. While I doubt he cares, I am not sending him money.

    Here is the letter I sent him:

    Dear Jim,

    Sorry, but I see no reason to contribute to your campaign.

    Like most of the 7th I like you and enjoy having an outspoken congressman who represent me. I could justify sending money to you, even if your seat is secure, if I were more convinced that you were more effective in getting things done.

    I feel especially strongly about many issues that are affect this District. I am VERY concerned about the welfare of the UW and the other premiere public ivies across the nation. I am also very concerned with the need for immigration reform that will let the US continue to benefit from bringing the world’s best and the brightest here. Sadly, you seem unaware that the UW even exists in your District and I have not heard anything coherent from you about immigration of talented people to feed the UW and Seattle’s high tech industries.

    The “Seattle” issue you and I both care deeply about is healthcare reform. Frankly, other than rhetoric for single payer and a vote that I would imagine anyone from the 7th would have to give, I have seen little real contribution from you. What role have you played and are you playing in bringing Obamacare into being?

    Today.s court decision from 6th Circuit Ct. of Appeals brings my corner about your involvement to a head. Have you spoken out against Attorney Gensral McKenna’s misuse of my tax dollars? Have you spoken out about the incredible increase in our debt caused by Republican intransigence in getting health care to work?

    Healthcare reform has a special meaning here in the 7th because the UW School of Medicine is ranked so highly in primary care. Your article in the New England Journal of Medicine was at best naive and at worse insulting to those of us who believe in what the UW is doing.
    Sadly, as a Prof. at the UW School of Medicine, I am unaware that you have ever shown up here to take advantage of the amazing expertise we have along NW Pacific.

    My bottom line is this. Even if your seat is secure, I would give money if Jim McDermott were more visible in our local politics. Tell me then, who are YOUR protegés? What role have you played in trying to defeat Dave Reichert or convince great progressives to run for office in your District? Sadly, it seems to me that the McDermott charity lends little to its wealth or prestige to promote others careers.

    There is reason to hope that I will contribute funds to the 7th and hope you will not be dispirited. I would love to see better use of this safe seat! Alternatively, if and when you decide to step down so a younger person can take better advantage of this seat, I hope you will write and urge my support for the causes we share.


  6. 6

    Politically Incorrect spews:

    If you want cheaper health care, increase the number of doctors, nurses and other health care professionals. A little competition for dollars might make things a little more affordable.

  7. 7

    Michael spews:

    We’d have to increase spending on education to do that and that doesn’t look like it’s going to happen. We could also invest in programs like Walking School Bus and Safe Routes to School, which help us have healthier kids and save us money in the long run. But again, that’s an investment we’d have to make in the public sector and we’re not willing to do that at the moment.

  8. 8



    ‘Calling them “Circuit Courts” is a bit jarring. The proper terminology is “Circuit Courts of Appeals” or “Federal Courts of Appeals.”’

    I am not sure I understand your point. The only place I used “Circuit Courts” as the full description is in the bullet list. And adding the full name there would cause the line to wrap. In other plural contexts I used “Circuit Courts of Appeals” (once) and “Courts of Appeals” (once).

  9. 9

    Doc Daneeka spews:

    To increase the number of doctors, you have to open up the match system. The schools will not admit more students than they can match trough the NRMP. And thanks to Congresscritters and the Pension Funding Equity Act of 2004, hospitals have absolutely no incentive to increase the number of residencies available or to break out of the NRMP to go after free agent graduates. Quite the contrary. A hospital that accepted graduates into a residency program without going through the NRMP would be excluded from access to NRMP candidates. Under normal circumstances this kind of commercial collusion would be against the law.

    But don’t worry about all that. Pay no attention to the racketeering routinely engaged in by big hospitals. Just look over there! Is that Lady GaGa? Oooohhhh!

  10. 10

    Michael spews:

    Are we still shipping in nurses from the Philippines and such rather than expanding programs to train our own folks?

  11. 11

    Politically Incorrect spews:

    Yeah, but you gotta admit there ain’t any competition in the medical area – especially when it comes to specialists. When was the last time you saw a cardiac surgeon running a special on bypass surgery?

    When I was a kid, the docs seemed to be doing OK, but they didn’t have waterfront homes with four-car garages and condos in Maui and Banff: they were definitely upper-middle class. I think it was when Medicare allowed them to charge just about anything they wanted to charge that the prices just got out of fucking control. {It’s funny, too, when I remember that all the docs at the time Medicare was enacted thought it would put them out of business. What really happened was just the opposite!}

  12. 12

    YellowPup spews:

    I wonder if McKenna will actually benefit from this, politically speaking. By signing on to the lawsuit he proved himself to the whackadoodle base, and now there is less risk of it raising awareness of his doodle-ality further in the mainstream, where he is still widely considered a sensible moderate.

    If the SCOTUS takes on an appeal, it would be interesting to see if Clarence Thomas recuses himself.

  13. 13

    Deathfrogg spews:


    Technically this is true. A major problem is that too many people enter medical school for the primary reason that the profession will make them shitloads of money. There is too much money to be made in medicine as a specialist. There is no other high education profession anywhere where someone can exit the educational part of the system and enter the professional part and be able to buy a house, expensive car or two and become wealthy within just a few years of graduation. Too many doctors are in it for the money, and that must change.

    Now, the main reason for specialization is that people who do specialize in one aspect or another in anything is that they tend to be pointed early in their careers as physicians to a specialty that fits their interests and talents. Such people are filtered through the residency programs and guided toward a specialty that the older and more experienced Doctors see them as being fit to do. But another aspect of that is the fact that nobody can be everything, and with that in mind, there are too many people specializing, being pushed into a specialty that would otherwise be pretty fair generalist, family type physicians, which is not an aspect of medicine that makes much money. Too many people specialize in the most lucrative practice rather than the most helpful or needed. It is this that makes general practical medicine rare and expensive.

    I submit the idea that if more people were to go into general family practice, such folks should have their student loans forgiven completely or even be allowed to go to medical school for free. The system should be oriented toward a greater generalization and less focus put on how wealthy an individual can become by specializing.

    A major part of why people do not enter medical school is the cost of the education vs the money that can be made during the course of a career, the costs of malpractice insurance is a primary driver of that specialization and gravitation to the highest paying specialty that the individual can wheedle themselves into.

    I knew a woman from High School, who went to Stanford Medical School, went through residency and during that process was pushed towards a specialty that she found somewhat uninteresting after only a couple years of doing it, and the insurance costs almost drove her out of the profession entirely. But she ended up going on to a Post-Doctoral degree and now teaches at a medical school in California. The actual practice of medicine became something that she really didn’t like doing very much, with all the stupid “office politics” and the drive towards wealth that she had experienced among her peers as a Obstetrician. She now spends part of her time every year with the Peace Corps and is active in Doctors Without Borders. She loves it, even when she ends up in the most heartbreaking parts of the world. She also isn’t interested in wealth, and has little in the way of material desires.

    I shoulda married that one. But man, was she driven back then. Totally focused on becoming a doctor. That leaves little time for gnarly sex or settling down to build a family.

  14. 14

    Michael spews:

    See #1

    • The law has a 10% incentive payment for doctors who do primary care in underserved areas.

  15. 16

    Deathfrogg spews:

    @ 14

    Thats the law now, not what it was 20 years ago when she went back to school for her MD-Ph.D.
    I wish I still knew her. Haven’t heard from her in maybe 15 years. She’s in Costa Rica and Nicaragua more than home, last I heard anyway.

  16. 17


    Sorry folks … there is no free lunch.

    1. The costs of medicine will INCREASE if we have more docs. If you don’t believe it, try hiring an attorney for a reasonable price .. even though we have a LOT of unemployed JDs.

    The only way to cut costs significantly is to ration healthcare.

    2. The real reason many students choose specialties is that these are VERY challenging. We have a very selective system and kids who can get through that are very likely to want to do difficult things.

    3. On the other hand society uses MDs in weird and inefficient ways. The “MD” is required for many functions that can be very well done by nurse practitioners.

    4. Big money is NOT in the specialities ,,, it is in admin!

    5. If you want to look at the BEST docs .. look at Med School faculty. We are paid a small fraction of what our private colleagues make. Why do we do it? The challenge of high level medicine is wonderful!

  17. 18

    proud leftist spews:

    PI @ 11: “I think it was when Medicare allowed them to charge just about anything they wanted to charge that the prices just got out of fucking control.”

    Actually, Medicare negotiates substantially lower rates of reimbursement for medical services than do private insurers. Medicare might pay half or less for a hip replacement procedure than might Premera or Regence. Medicare has tremendous bargaining power with providers because of how many people it covers. Of course, because of its low rate of reimbursement, many providers won’t treat Medicare patients. But, enough do.

  18. 20

    rhp6033 spews:

    # 4: The Circuit Courts of Appeals have a long history, when the judges were literally “riding the circuit” within their jurisdictions, hearing appeals at various court-houses, taverns, public meeting houses, or wherever enough space could be found.

    Originally, the justices of the U.S. Supreme Court were the intial judges constituting the Courts of Appeal. That’s why they would recess by early June, so they could take advantage of the better traveling weather in the summer months to hear appeals, and then re-convene in Washington D.C. in time to hear the first cases in October. This also allowed them to vacate Washington D.C. during the summer months, as did most of it’s inhabitants – the swarms of smallpox-carrying mosquitos used to make the city (built mostly on or near swampland) largely uninhabitable during the summer months.

    Abraham Lincoln was never a judge, but he learned how to be a politician riding the circuit with his fellow lawyers and judges, going from town-to-town to resolve legal disputes. It gave him an opportunity to become well aquainted with the leaders of communities throughout Illinois, learn what motivates and interests the population generally, and to speak persuasivly at the drop of a hat. When the circuit court came to town, many residents considered it to be finer entertainment than a circus.

  19. 21

    Michael spews:

    The final price tag for American military involvement in the wars in Afghanistan, Iraq and Pakistan will cost taxpayers up to $4.4 trillion, according to a new study.

    Read more:

    4.4 trillion would train a lot of doctors & nurses, cure a lot of ear infections, build a lot of railways and schools….

  20. 22

    Deathfrogg spews:

    @ 21

    What are ya, some sort of commie? War is too lucrative to waste all that money on stupid commie shit like health care or education.

  21. 23

    Roger Rabbit spews:

    @22 Yeah, we got an unreconstructed liberal posting here, I should educate him in the miraculous nature of capitalism — if you gamble with other people’s money you’ll never have to work again!

    P.S., bankers make more than doctors

  22. 24

    correctnotright spews:

    Umm, sj – sorry but some of your “statements” are simply wrong or not supported by the facts:

    1. “

    The only way to cut costs significantly is to ration healthcare.”

    No – if you look at the inefficiencies in Medicine that are plenty of ways to cut costs including:

    A third of U.S. health care expenditures goes toward administrative costs (Canada spends less than half that — about 16 percent). But that money goes to more than just reams of dead trees; it also pays the salaries of everyone from phone operators to top executives, as well as for claims processing and sales.

    Covering preventive care is low on most insurance companies’ priority lists, even though doing so could help patients avoid serious illnesses and their complications — as well as their pricey treatments. “We pay for costly interventions like bypass surgery or chemotherapy to treat diseases at the back end instead of focusing on lifestyle changes to keep patients healthy on the front end,” says Aaron Carroll, M.D., director of the Indiana University Center for Health Policy and Professionalism Research. Placing a priority on preventive care would also save billions: One recent report showed that investing just $10 per person per year in programs on exercise, nutrition, and smoking cessation could save $16 billion per year in another five years.

    We (the US) spend almost twice what the next closest country spends on health care and we get….health care on par with slovenia. So some rationing and singl;e-payer health care (practiced in most of the industrialized and civilized world) is cheaper and better.

    Oh, and doctors go into specialities to earn more money – they need to pay off the debt from Medical school. What is more interesting that being an internist and actually figuring out what is wrong – as opposed to doing you 300th bypass operation becuase a patient did not get preventative care?

    We also pay more for prescription drugs and use more of these drugs than any other country…wonder why that is?

  23. 25

    Xar spews:

    @8: That’s the one I was talking about (sorry for the erroneous pluralizing). In some states, “Circuit Courts” are the lowest-tier trial courts, so it’s clearer to use the full name Circuit Court of Appeals. Like I implied though, it’s a pendantic issue.

    @20: Yeah, I know where the name comes from. It’s just imprecise. Riding circuits is how some rural areas (particularly in the west) used to handle trial courts–thus circuit judges and circuit courts as trial courts. That’s what Lincoln was following–a trial court or state court, not one of the Federal Circuit Courts of Appeals.