Judge Sutton on the Individual Mandate

Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.

I think Judge Sutton’s separate opinion is excellent, but then it’s easy for me to say: Judge Sutton’s views closely match what I’ve been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me. In any event, in light of our many debates here on whether the proposed action/inaction distinction is clear and obvious (as Randy argues), or is actually quite complex and uncertain (as I have contended), I thought it would be worth posting Judge Sutton’s discussion of why he finds it quite confusing:

Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists. Does this test apply to individuals who have purchased medical insurance before? Those individuals have not been inactive in any sense of the word when it comes to the medical-insurance market, yet plaintiffs say that Congress may not regulate them.

What of individuals who voluntarily have insurance on the day the mandate goes into effect? One of the plaintiffs in this case, Jann DeMars, now has insurance, yet she claims Congress has no right to require her to maintain that coverage. It is not clear what the action/inaction line means in a setting in which an individual voluntarily (and actively) obtains coverage and is required only to maintain it thereafter. As to this group of individuals, why can’t Congress regulate them, even under plaintiffs’ theory of the case? We no longer are talking about a mandate imposed on the mere status of “existence” in the United States but on individuals who have voluntarily purchased medical insurance in an interstate market and who must maintain only what they chose to buy. At a minimum, this application of the law is constitutional.

How would the action/inaction line have applied to Roscoe Filburn? Might he have responded to the Agricultural Adjustment Act of 1938 by claiming that the prohibition on planting more than 11.1 acres of wheat on his farm compelled him to action—to buy wheat in the interstate market so that he could feed all of his animals? And is it any more offensive to individual autonomy to prevent a farmer from being selfsufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard, 317 U.S. at 129 (acknowledging that the law “forc[ed] some farmers into the market to buy wheat they could provide for themselves”). How would the action/inaction line apply if someone like Angel Raich sold her house, marijuana plants and all? The Controlled Substances Act would obligate the new owner to act (by removing the plants), see 21 U.S.C. § 844, but it seems doubtful that he could sidestep this obligation on the ground that the law forced him to act rather than leaving him alone to enjoy the fruits of inaction.

There is another linguistic problem with the action/inaction line. The power to regulate includes the power to prescribe and proscribe. See Lottery Case, 188 U.S. 321, No. 10-2388 Thomas More Law Center, et al. v. Obama, et al. Page 45 359–60 (1903). Legislative prescriptions set forth rules of conduct, some of which
require action. See, e.g., 18 U.S.C. § 2250 (sex-offender registration); id. § 228 (childsupport payments); see also United States v. Faasse, 265 F.3d 475, 486–87 (6th Cir. 2001) (en banc). The same is true for legislative proscriptions. Take the drug laws at issue in Raich, where Congress regulated by prohibiting individuals from possessing certain drugs. A drug-possession law amounts to forced inaction in some settings (those who do not have drugs must not get them), and forced action in other settings (those who
have drugs must get rid of them).

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 “[w]e continue to make more money when snoring than when active” or that “[i]nactivity strikes us as intelligent behavior,” Chairman’s Letter to Shareholders (Feb. 28, 1997), ¶¶ 72–73, available at http://www.berkshirehathaway.com/letters/1996.html, he is not urging the Board of Directors to place him in a Rip Van Winkle-like stupor for the next year. 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.

No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce. In affidavits filed in this case, the individual plaintiffs all mention the need
to make current changes in their spending and saving practices to account for the need to pay for medical insurance in the future. Saving to buy insurance or to self-insure, as these affidavits attest, involves action. E.g., Ceci May 27, 2011 Decl., ¶ 7 (“Due to the added financial pressure [of the mandate], I have cut back on discretionary spending, such as costs associated with entertainment, like going to the movies, a restaurant, or sporting events.”); Hyder May 28, 2011 Decl., ¶ 8 (same).

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