Liberal and progressive activists were pleased back in June when conservative 6th Circuit Judge Jeffrey Sutton voted to uphold the Patient Protection and Affordable Care Act's individual mandate as a lawful exercise of Congress' power "to regulate commerce…among the several states." Now conservatives and libertarians have a Sutton of their own. As Peter Suderman reported earlier, the 11th Circuit today became the first federal appellate court to strike down the individual mandate. And notably, one of the two judges who joined that majority opinion was Clinton appointee Judge Frank Hull. Party affiliation means much less than judicial philosophy, of course, but for those keeping track the cross-partisan score is now even. And since we already have an excerpt from the majority opinion, here's how dissenting Judge Stanley Marcus (also a Clinton appointee) justifies his solo vote in favor of upholding the individual mandate:
In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, "to prescribe the rule by which commerce is to be governed." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). It has ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court's expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that "commerce among the states is not a technical legal conception, but a practical one, drawn from the course of?business." Swift & Co. v. United States, 196 U.S. 375, 398 (1905).
The approach taken by the majority has also disregarded the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers. The circumspection this task requires is underscored by recognizing, in the words of Justice Kennedy, the long and difficult "history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era." United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J., concurring).
ObamaCare is now one giant step closer to the Supreme Court.