Mark Hall is the Fred and Elizabeth Turnage Professor of Law and Public Health at Wake Forest University.  He is the author or editor of fifteen books in the field, including Making Medical Spending Decisions (Oxford University Press), and the casebook Health Care Law and Ethics (Aspen).  In addition to the constitutionality of reform, his current research focuses on safety-net access for the uninsured, and implementing insurance market reforms. To view the symposium in its entirety, click here.


The Sixth Circuit's opinion in the Thomas More case lays out exactly what we're likely to see when one of these constitutional challenges to the Affordable Care Act reaches the Supreme Court.  Judge Martin, a Carter appointee, agreed with the district court, and most law professors, that upholding the individual mandate is an easy case.  Health insurance and health care finance are thoroughly economic and extensively interstate, clearly within the wheelhouse of Congress's commerce power.  Since this power is plenary, Congress may regulate any logical way it chooses, including a purchase mandate, as long as individual rights are not violated, which they obviously aren't unless we are to reinstate some version of Lochner.  Inactivity is beside the point, but even if activity were doctrinally relevant, uninsured people seek health care all the time without paying the full costs.

We can expect the four liberal Justices to readily agree with some version of this logic, but what about the other five?  How likely is each and every one to agree with dissenting Judge Graham (sitting by designation) that the commerce power does not permit a purchase mandate "“ simply because non-purchase does not sound like commerce?  Judge Sutton's concurring opinion, thoroughly rejecting this argument, masterfully shows how difficult it is to accept, even by jurists like Judge Sutton with strong conservative credentials.

Reading Judge Sutton's opinion teaches us that, for the challengers to prevail, each of the five conservative Justices must agree with some version of each of the following three implausible contentions.  (I will not even bother to explain why each is implausible.  Here's my fuller explanation if that's not immediately obvious):

1) This case is only about health insurance purchase and not about health care payment.

2) Drawing a line between economic activity and economic inactivity is both reasonably justiciable and meaningfully serves Article I's underlying purposes.

3) The Necessary and Proper Clause either forbids, or does not permit, a purchase mandate.

a) It doesn't permit a mandate because a mandate does not "carry[] into execution" other aspects of the reform law (such as guaranteed issue and community rating) that indisputably do constitute commerce regulation, or

b)  A mandate is "improper" for some articulable and doctrinally justifiable reason, which further requires agreeing that

i) A purchase mandate is an improper means to effectuate the Commerce Clause even though it is clearly a proper way to carry out other Article I powers, and

ii) Congress may tax people, jail people, or take their property as necessary and proper extensions of the Commerce Clause, but cannot require them to purchase private goods or services.

Judge Sutton bravely faced this gauntlet of logical obstacles to the challengers' position and realized that it could not be run.  How likely is it that each of the five conservative Justices will disagree with him?  Consider these seven points quoted from his opinion:


  • “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. All three methods of paying for medical care (private insurance, public insurance and self-insurance) meet this modest requirement. And if Congress may prescribe rules for some of these methods of payments, as plaintiffs seem to agree, it is difficult to see why these words prohibit it from doing the same for all three.”
  • “Second, the promise offered by the action/inaction dichotomy"”of establishing a principled and categorical limit on the commerce power"”seems unlikely to deliver in practice. . . . Does this test apply to individuals who have purchased medical insurance before? . . . What of individuals who voluntarily purchased bare-bones insurance before the mandate's effective date . . . but are required by the minimum-essential-coverage provision to obtain more insurance?”
  • “An enforceable line is even more difficult to discern when it comes to health insurance and the point of buying it: financial risk. Risk is not having money when you need it. And the mandate is one way of ensuring that all Americans have money to pay for health care when they inevitably need it. In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident. If done responsibly, the former requires more action (affirmatively saving money on a regular basis and managing the assets over time) than the latter (writing a check once or twice a year or never writing one at all if the employer withholds the premiums). What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk. When Warren Buffett tells shareholders that . . . ‘[i]nactivity strikes us as intelligent behavior,’ . . . he is . . .  saying that, of the many buy and sell recommendations that came across his desk that year, the best thing he could have done is the informed, even masterful, inaction of saying no to all of them.”
  • “Still more difficult to see is the idea that the word ‘proper’ imposes such a limitation. . . . Congress also would have acted within its commerce power had it opted to regulate insurance coverage at the point of sale, and the word ‘proper’ would not have gotten in the way. The legislature could have said that when non-exempt individuals obtain health care, they are put to a choice: either pay for the care or buy medical insurance from then on. This approach would impose a federal condition (ability to pay) on the consumption of a service bound up in federal commerce (medical care). Yet such a law would be at least as coercive as the individual mandate, and arguably more so. . . . The Act, by contrast, does not regulate individuals at a time of crisis. . . . .  If one of these laws is legitimate, so it would seem is the other. Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind, and not the sort of policy differences removed from the political branches by the word "proper" or for that matter ‘necessary’ or ‘regulate’ or ‘commerce.’”
  • “[T]o the extent plaintiffs mean to argue that the Tenth Amendment contains its own anti-commandeering principle applicable to individuals and to all of Congress's enumerated powers, that is hard to square with the taxing power, which regularly commandeers individuals"”in equally coercive ways"”to spend money on things they may not need and to support policies they do not like. . . . Go to any federal prison in the country to see how a broad conception of the commerce power has affected individual liberty through the passage of federal gun-possession and drug possession laws and sentencing mandates.”
  • “Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.”
  • “The very force of the intuition [that Congress should not be able to compel people to buy something they do not want] also helps to undo it, as one is left to wonder why the Commerce Clause does the work of establishing this limitation. Few doubt that Congress could pass an equally coercive law under its taxing power by imposing a healthcare tax on everyone and freeing them from the tax if they purchased health insurance. If Congress may engage in the same type of compelling/conscripting/commandeering of individuals to buy products under the taxing power, is it not strange that only the broadest of congressional powers carves out a limit on this same type of regulation?  Why construe the Constitution, moreover, to place this limitation"”that citizens cannot be forced to buy insurance, vegetables, cars and so on"”solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies? . . . Sometimes an intuition is just an intuition.”


Touche, Judge Sutton.

Posted in Featured, The Constitutionality of the Affordable Care Act

Recommended Citation: Mark Hall, A sixth sense: What Judge Sutton’s opinion foretells, SCOTUSblog (Aug. 4, 2011, 1:17 PM),