Liberal commenters have showered hosannas all over conservative 6th Circuit Judge Jeffrey Sutton’s opinion yesterday upholding the constitutionality of the Patient Protection and Affordable Care Act’s health insurance mandate. And why wouldn’t they? Not only is Sutton the first Republican-appointed federal judge to rule in favor of ObamaCare (thanks a bunch, George W. Bush!), he’s a former clerk to Justice Antonin Scalia and a respected figure in Federalist Society circles. He’s precisely the sort of bipartisan cover that each side in the debate has been waiting for.
But Sutton’s new liberal fans might want to contemplate his entire opinion, not just the portion that discusses whether Congress has exceeded its authority under the Commerce Clause by unlawfully regulating inactivity. For instance, take a peek at Sutton’s rousing conclusion:
No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States. And no issue was more bound up in that debate than the wisdom of creating a national bank. In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict. Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again). There was no third national bank....
Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.
That’s the classic case for judicial restraint. If you don’t like the law, head to the ballot box, not to the courthouse. But how many ObamaCare supporters want to apply that standard across the board? In Lawrence v. Texas, for example, the Supreme Court entered the political thicket of gay rights and struck down a popularly-enacted state law banning sodomy. Judicial restraint demanded the opposite result. My guess is that many of the folks currently celebrating Sutton’s opinion would not retroactively apply his reasoning to Lawrence.
Here’s another one to think on: Boumediene v. Bush. In that case, the Supreme Court nullified part of the popularly-enacted Military Commissions Act of 2006 in order to extend habeas corpus rights to prisoners held at Guantanamo Bay. Justice Stephen Breyer, who generally favors judicial deference to the political branches, admitted in his recent book Making Our Democracy Work that, “One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress’s broader purposes.” So judicial restraint in Boumediene meant deferring to Congress and upholding the noxious law.
In other words, ObamaCare supporters shouldn’t be surprised when Sutton’s eloquent ode to judicial deference comes back to haunt them in the battle over a law they don't support.