My Review of 6th Dist Appellate Ruling (Cuccinelli on Obamacare)

I wanted to update you on the appellate ruling in the healthcare case in the 6th Circuit on June 29th. There are a lot of nuances to the ruling, so let's start at the beginning and go through them one at a time.

Remember that in an ordinary appeal (not to the Supreme Court), three judges sit together to decide the appellate case.

There are three appellate courts that have heard appeals of the merits of the healthcare cases: the 4th circuit (including Virginia); the 6th circuit; and the 11th circuit (where 26 of our sister states argued their case). Only the 6th circuit has ruled so far. We are awaiting rulings in our case in the 4th and the Florida case in the 11th.

Because three judges sit on each of these cases, an important procedural rule to be aware of is that the narrowest opinion in the majority is deemed the governing opinion of the court. This only arises as an issue with what I’ll call a ‘split majority.’

This rule of interpretation is important in the 6th circuit's case because all three judges wrote separate opinions in the case. Two of them came to the same conclusion in this case, namely, that the individual mandate is constitutional, but their reasoning was very different from one another.

The three judge panel split 2-1, with two judges concluding that the individual mandate is constitutional, at least in this case. One of those judges – Judge Martin – concluded that the mandate is constitutional, period. However, Judge Sutton, who wrote the narrowest prevailing opinion, said only that it was constitutional in this case, but could be unconstitutional on a case by case basis in other cases - a very unusual ruling indeed.

Because of the unique approach taken by Judge Sutton, it seems unlikely that other judges (or Justices) will follow his approach.

While upholding the constitutionality of the individual mandate, the court voted 2-0 to reject the federal government's argument that the individual mandate and accompanying penalty could be sustained under Congress' taxing power. You may ask, 'where was the third judge?' The answer is that Judge Martin did not address the subject.

Judge Martin reasoned that he had already upheld the individual mandate under the commerce clause, so there was no need to address the taxing power argument. However, both Judges Sutton and Graham did address the subject - and both rejected the feds' claim that the penalty was a 'tax' and thus fell under Congress' constitutional taxing power.

As a reminder, what the feds are arguing is that the penalty you must pay if you fail to buy the government-mandated health insurance is in fact a tax, not a penalty. Furthermore, they say, that Congress has broad authority to levy taxes under Article I, section 8 of the constitution (this is certainly true). Therefore, this reasoning goes, Congress was simply exercising its constitutional taxing power by imposing the penalty on those who fail to obey the government diktat to buy approved health insurance.

Put simply, the feds are saying that they can order you to do just about anything, then assess a financial penalty against you if you fail to act, and because they deem that penalty a tax, the whole thing is constitutional. This is the most radical claim in the whole case - by far.

You may recall that both the President and then-Speaker Pelosi argued that the penalty for failure to buy their approved health insurance is NOT a tax… but that was back when they were trying to get votes for the bill. Once we sued them and they got nervous that we might win, well, suddenly they ‘discovered’ it WAS a tax!

If you’d like to watch the President argue it’s NOT a tax increase in his famous interview with the communications director for the vast right wing conspiracy – George Stephanopoulos – it’s right here.

Those of you that have heard me speak on this matter have heard me say that I am loath to make any specific predictions on how this case will go, but that I will predict that no judge or justice in America will agree with the federal government's radical taxing power argument.

Judge Martin: individual mandate IS constitutional; did not vote on taxing power.

Judge Sutton: individual mandate IS constitutional (in this case); penalty is NOT a tax.

Judge Martin didn't vote on both issues because he knew that the feds only needed to win on one to sustain the statute, so he didn't vote on the tax issue.

Judge Sutton concluded only that the individual mandate was constitutional in this case, so because he presumably foresaw circumstances in which the individual mandate might not be constitutional, he proceeded to also rule on the tax question.

Judge Sutton appears to have distinguished between an "as applied" challenge and a “facial” challenge. An “as applied” challenge concedes the overall validity of the law, but asks the court to declare its application unconstitutional in this one distinct factual situation. A "facial" challenge is one that asks the court to throw out the entire law.

The only reasonable reading of Judge Sutton’s opinion is that he treated the case as a facial challenge, but that he thought there could be as applied challenges that could succeed. What a nightmare!

Virginia is bringing a facial challenge. The individual mandate is either beyond Congress’ commerce clause power or it’s not. It can’t be within their power in some circumstances but not others…

Two of the judges (Sutton and Graham) agreed that the exercise of power by the federal government in mandating individuals to buy government-approved health insurance is "unprecedented."

This part is consistent with my view that for the federal government to win this case, the Supreme Court will have to go farther than it has ever gone before in expanding the commerce power of Congress. However, for the states to prevail, the Court need not go beyond or overturn any prior commerce clause case.

Judge Sutton didn’t see it that way, saying: “Mindful that we at the court of appeals are not just fallible but utterly non-final in this case," he went on to say: "let me start by explaining why existing precedents support the government."

You will also note that Judge Sutton explicitly presumes the Supreme Court will address these questions.

What I found most striking in Judge Sutton’s opinion was his statement that the Supreme Court "either should stop saying that a meaningful limit on Congress's commerce powers exists or prove that it is so."

Wow… and I agree… but that’s quite a gauntlet for an appellate judge to throw down to the Supreme Court!

Both Judges Sutton and Graham spoke predictively about the 'direction' of Supreme Court cases related to the commerce clause and federalism - a decidedly unusual feature of a lower court opinion to see. Of course, they each see the Supreme Court going in different directions regarding constraining the federal government’s enumerated powers.

I am unfamiliar with any case ever that saw such brazen expectations of Supreme Court involvement explicitly written into the opinion. It seems that virtually all of the trial and appellate judges who have touched this case are confident that it's going on to the Supreme Court. Again, very unusual, but perhaps that is the least surprising element of them all.

Separately, thank you to all of you that donated online to help us try to reach our fundraising goals before June 30th!

Wow… and I agree… but that’s quite a gauntlet for an appellate judge to throw down to the Supreme Court!

A constitution is an agreement by which the people establish the circumstances under which they will consent to be governed. Our framers and subsequent amendments fashioned an arrangement under which the federal government was authorized to act in certain areas but not in others. Where it was authorized to act, such as in creating a post office or providing for the national defense, or in regulating commerce among the states, the government was authorized to act effectively. That is, the government was granted sufficient powers, those powers which might be "necessary and proper" to govern effectively within those areas of subject matter. Those areas of subject matter have come to be known as the "enumerated" powers.

Unquestionably, the original deal was that where government is authorized to act, it is authorized to act effectively. But where it is not authorized to act, it may not act at all. And, even where it is authorized to act and act effectively, it must act decently, that is, in accordance with long and commonly understood rules of fairness which we call, "due process" and "equal protection"

The significance of the Obama care cases comes because the statute, if ruled constitutional, means that in huge sectors of American activity there can be no restraints on the subject matter into which Congress can intrude and regulate. This is because Congress is authorized by the same constitution to enact laws which are necessary and proper to regulate commerce and, if you make the definition of "commerce" broad enough you can regulate virtually any human activity and even any human inactivity.

Once you take this step and define commerce so broadly that it embraces an individual's choice whether to purchase personal health insurance, and you do so because you say that his choice affects interstate commerce even if the individual takes no action and makes no purchase. "Commerce" has come to mean virtually any human activity or inactivity and is liable to regulation by Congress if Congress in its discretion decides that it is "necessary and proper" to regulate.

Once this stage in constitutional jurisprudence is reached, there is no possibility of any serious article 3 review of article 2 laws on the basis of subject matter, that is, that the law touches on a subject which is not among the authorized enumerated powers accorded Congress to regulate. There does remain a scope of review in which the judges could assert that the regulation contained in the law is unconstitutional because it is unfairly applied.

So the Supreme Court would retain rump jurisdiction to tweak legislation as it is applied although it has forfeited its jurisdiction to declare it ultra vires enumerated powers.

As a conservative, I am not mollified by this revolution in constitutional jurisprudence rather I am acutely disquieted. At the end of this process we will have turned the Constitution on its head and it will, if does not not mandate a top down, command economy, it will patently authorize and memorialize the power of Congress to micromanage our lives.

The retention of power in the Supreme Court to apply "fairness" to this new way of governing ourselves is not reassuring. It tells me that the politicization of the court which has resulted in a Balkanization of the court, mirroring the Balkanization of our country, will inevitably result in further distortions of our constitutional republic. In other words, fairness is likely to be applied in terms of which group is favored and which is perceived to be harmed in the application of Congress's newfound power to regulate everything and everybody. We conservatives know which groups will be favored and which groups will bear the burdens.

We have now moved into the perfect constitutional vehicle for Marxist control of our lives. Expect to be ruled by cronyism and by identity politics. If you are a white corn farmer in Indiana, do you think you will have a better or a worse chance before The Court than a community organizer from Chicago? Within Congress? Nathan Bedford's maxim that all politics in America is not local but ultimately racial will be applied with a remorseless thoroughness that will equate to bondage. Except where the Supreme Court chooses to restrain Congress by application of the Bill of Rights or some contrived constitutional right, like abortion, we can see no restraint imposed on Congress and where we do see efforts to control regulations as applied, they will come from a contorted identity politics rather than from our original agreement in which we consented to the way we would be governed. We already know that we will abandon the Constitution; we will also have abandoned the rule of law as we abandon capitalism.

When we get to this point, and we will if Justice Kennedy gets up on the left instead of the right side of the bed, I am at a loss to understand why I should believe in the concepts of the rule of law, love of country, or moral duty to obey the laws of Congress.

Nice analysis. And thanks to Ken Cuccinelli for forwarding a summary at a level worthy of an intelligent constituency, rather than the degenerate emotional propaganda of the left (which of course is the struggle). Thank God for Virginia, (but not Webb nor Warner).

Among the several direct political ramifications in your analysis:

"Commerce" has come to mean virtually any human activity or inactivity and is liable to regulation by Congress if Congress in its discretion decides that it is "necessary and proper" to regulate.

The Supreme Court is apparently the modern agent which interprets this extent of "human commerce," which gives it great power (and may be a flaw of the Constitution); but even so it is still the Congress which composes the laws. Thus to restrict and dismantle the relentless oppressive power of federal government, which constitutionally we maintain is primarily there to protect individual freedom rather than erode it, it is necessary to have a Congress which collectively elects to dismantle that power.

This of course is a very difficult strategy to muster given the local nature of elected representatives who are elected largely on a basis of what they can get for the local constituency. This is exactly why the "Republicans," if we are to believe they have any worth at all, must bring the most comprehensive and fundamental arguments to the public debate. And is what the Tea Party is about, be damned the Republican Party.

Optimistically one would hope the majority of the voting public would recognize these fundamentals of human dignity, freedom, and personal responsibility, IF they were brought to the table. And indeed a major manifestation of those fundamentals is de-funding (as in debt limits and spending) the centralized government.

Pessimistically however one might expect that the voting majority is not capable of understanding those fundamentals, nor are any of the establishment parties willing to speak and explain them. Personally I think GWB was our last chance, and he failed. Our shallowness has been our defeat.

We can only fight on and trust in the humility and understanding of our fellow citizens, and elected compatriots like Mr. Cuccinelli.

Johnny Suntrade

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