Judge Sutton Channels …Me?? States and individual liberty
by Beverly Mann
Judge Sutton Channels … Me??
Sixth, the anti-commandeering principle of the Tenth Amendment adds nothing new to this case. True, the Tenth Amendment reserves those powers not delegated to the National Government “to the States” and “to the people.” True also, a critical guarantee of individual liberty is structural and judicially enforceable—preserving a horizontal separation of powers among the branches of the National Government, INS v. Chadha, 462 U.S. 919, 957–58 (1983), and a vertical separation of powers between the National Government and the States, New York, 505 U.S. at 181. Odd though it may seem in light of American history, States’ rights sometimes are individual rights. See Bond v. United States, 564 U.S. __, No. 09-1227, slip op. at 9 (June 16, 2011). Doubt it? 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.
But to 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. And to the extent plaintiffs mean to argue that such a principle captures (or reinstates) limitations on the meaning of “proper[ly]” “regulat[ing]” interstate “commerce,” that takes us back to the points already made about Congress’s delegated power in this area.
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That brings me to the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership? Could it require computer companies to sell medical-insurance policies in the open market in order to widen the asset pool available to pay insurance claims? And if Congress can do this in the healthcare field, what of other fields of commerce and other products?
These are good questions, but there are some answers. In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. 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 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? Few doubt that the States may require individuals to buy medical insurance, and indeed at least two of them have. See Mass. Gen. Laws 111M § 2; N.J. Stat. Ann. § 26:15-2. The same goes for a related and familiar mandate of the States—that most adults must purchase car insurance. Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution. That means one of two things: either compelled purchases of medical insurance are different from compelled purchases of other goods and services, or the States, even under plaintiffs’ theory of the case, may compel purchases of insurance, vegetables, cars and so on. Sometimes an intuition is just an intuition.
—Sixth Circuit Court of Appeals Judge Jeffrey Sutton, in Thomas More Law Center v. Obama, June 29
Not to pat myself on the back, or anything—OK, yeah, I’m patting myself on the back, or something—but my last two or three posts here turned out to be spot-on. Which sort of surprises me, since I just analyze this stuff as a hobby. It’s gratifying.
But even more gratifying—and, I think, even more important than the rest of that excerpt—is the deconstruction of the claim by the far-right liberty-means-states-rights crowd, led these days by Ginni and Clarence Thomas, about the meaning of the term “liberty,” a word those folks have co-opted as their logo (have they copyrighted it yet?). They treat “liberty” largely not as an end—actual freedom—but instead as a means, as a process. According to them, so that, what matters is not the (literal) loss of, or the restriction of, liberty but rather whether it is the federal government or instead a state or local government that is limiting the freedom. With a few carefully selected exceptions, such as gun-ownership rights, all economic rights (especially property rights), and the free exercise of religion, states are, in their view, entitled to limit individuals’ freedom (or freedoms) at will—all in the name of “liberty.”
Sutton was a leading light in the conservative legal movement in the ‘90s. He served as a law clerk to Scalia for a year in the early ‘90s, and was an active member of the rightwing Federalist Society. Bush appointed him to the appellate bench in 2003. But as a judge, he’s played more the role of a skilled legal analyst and actual judge rather than a robot ideologue like, say, Samuel Alito. It was clear from the reports I read about the oral argument in the ACA case on June 1 that he was the swing vote on that panel.
I dearly hope that his opinion will spark, finally, a serious questioning by at least one or two of the federalist/state’s-rights ideologues on the Supreme Court of the logic of their states-have-the-right-to-trample-individual-rights-and-freedoms-in-the-name-of-liberty mantra.
As for the ultimate effect of his opinion on the outcome of the ACA litigation in the Supreme Court, I think that the fineness—the precision and logic—of the opinion will make it harder, as a practical matter, for a majority of justices to disagree with or ignore it.
Bev–Your recent articles have been excellent reading. And, perfectly right in their conclusions, it appears as far as Judge Sutton is concerned. I have a hard time understanding why States are thought to be defenders of individual liberty when they regularly seek to restrict individual rights such as that to seek reproductive health services or marry individuals of the same sex. You don’t have to put your decision to a popular vote if you want to seek sterilization. But, if you want to have an abortion, apparently your neighbors opinions are more important than yours in some states. If I had to put everything I want to do to a vote, I wouldn’t be able to do very much at all. Nothing like a priori reasoning to increase peoples’ freedom to live as they chose. NancyO
An element neglected in these discussions is that America is not just a big fenced pasture within which wandering citizens enjoy greater or lesser freedom. Americans ARE the nation, the fences that protect it, and the resources that nourish it.
The health and intelligence of citizens is not just one concern of the government, but the foundational concern upon which all other decisions rest. What kind of a nation is it whose people are unhealthy, insecure and ignorant? A nation headed for collapse – brittle on the outside, flabby on the inside, and vulnerable to any passing parasite or predator.
Our neighbours’ health and sanity is not somebody elses problem, its ours. If the law doesn’t seem to support that, at that point the law needs careful examination.
Different state and different strokes??
Michigan is deciding on whether to allow helmetless motorcycle riding. The balance to this is, the rider must buy more medical insurance in order to do so. By doing so, Michigan hopes to avoid a $100 million subsidy by the population to helmetless motorcycle riders who bump their heads in an accident.
On another front, Michigan I believe has an interesting approach to funding Medicaid. Michigan will have a 1% tax on all Medical Insurance rembursements to be used to fund Medicaid. Interesting approach and one which shifts the burden to the insured and citizens. Looking forward to seeing the:
get a job banners . . .
Michigan has one of the worst State Supreme Courts in the nation and also scores low in the performance of its public defender office. The court is notorious for ruling against individuals in favor of insurance companies and big business being sued by individuals. If anything, the state does little to defend individuals with the legislature and elected judges being bought off by the Koch Brothers with election finacial support. http://www.youtube.com/watch?v=tuhOTrXRhnY http://www.publiclydefended.com/about.html http://www.michiganautolaw.com/auto-lawyers-blog/2008/11/11/the-38-worst-judicial-travesties-of-the-michigan-supreme-court/
Thanks, Nancy. Yes, the idea that it gives us more liberty when we leave state governments entirely to their own devices—that is, when we remove constitutional checks on state power, is truly Mad Hatter stuff. At oral argument in Bond v. United States, Justice Kennedy claimed that government divided between federal and state power guarantees us liberty—a recurring theme for Kennedy and Clarence Thomas. But what they don’t mention is that it’s not just the balances, i.e., the divided powers, but also, and necessarily, the constitutional CHECKS in a checks-and-balances divided-government system that provide the restraint on governments’ powers.
Kennedy clearly recognizes the Constitution’s Supremacy Clause (which says that the “Constitution and federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding”), and he writes eloquent opinions invalidating state and local laws or government practices that violate basic constitutional rights (e.g., recently, Brown v. Plata, re California’s prison conditions; a few years ago, Lawrence v. Texas, invalidating a Texas sodomy statute). And back in 2006, he wrote a moving dissent in a case called Clark v. Arizona, concerning the constitutionality of Arizona’s ‘insanity-defense’ statute as it relates to mental illnesses such as, in the case, schizophrenia. But Kennedy aggressively believes that constitutional restraints don’t apply to the states’ judicial branches (as opposed to the states’ legislative and executive branches.
Kennedy never explains the dichotomy. In an email exchange last with a friend who is part of an email group we belong to that discusses certain court-related issues, in which we were discussing two Supreme Court opinions—Younger v. Harris, from 1971 and Mitchum v. Foster, issued a year later—I wrote:
“The ‘principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding’ actually clearly violate Art. I, which gives Congress, and only Congress, the authority to confer or refrain from conferring subject-matter jurisdiction as long as the jurisdictional statute is constitutional.
“Mitchum v. Foster has no real effect. Younger—a Court-created policy doctrine that doesn’t even purport to be required by the Constitution—has simply replaced the Anti-Injunction Act as a routine bar to sec. 1983 injunctions against court proceedings. And here’s what I’d like to know: Why exactly is the state’s judicial branch entitled to more comity and more federalism protections than the state’s legislative and executive branches? Is it because, […]
A few weeks ago, Nicholas Kristof had a terrific column in the New York Times making the point that what the policies that the anti-federal-government crowd wants are the policies that Pakistan has. There, the national government does virtually nothing, and the result is a society that very few Americans actually would want American society to resemble.
These people are friggin’ NUTS. That they’ve gained a stranglehold over this country’s government is astonishing and tragic. But Obama has played a huge role in allowing it to develop, by never pushing back in any meaningful, concerted way. This guy has virtually no actual ideas of his own and has no energy, and he always, always simply sits back and allows the Republicans to saturate with their propaganda, with no response whatsoever from him.
I’d love to see another Democrat—someone high-profile enough to gain attention—pick up the slack. Bill Clinton now has begun to do that, and dearly hope he continues to do it, because apparently no one else who can gain the attention of the media and therefore the public will do it.
Different states and different strokes is true, to a point, regarding state statutes, and the two Michigan statutes you mention are among them. Universal medical-insurance coverage, I know you agree, run, is not among them, though. What the people (e.g., Mitt Romney) who argue that this should be left to the states don’t mention is that it HAS been left to the states, decade after decade after decade. And thus far only one or two of them have done anything about it. Another thing they don’t mention, of course, is that no one state, least of all the small states, can do anything to control costs of healthcare.
And one nice response to the “Get a job” banners in response to the 1% insurance-reimbursement tax would be a banner showing a photo of an 85-year-old whose life savings has been exhausted paying nursing home bills and who continues to live in the nursing home courtesy of Medicaid. The photo’s caption should read: “What job should she get?”
As for Michigan’s Supreme Court, yes, it’s just a tool of the insurance companies and big business, and that court and the Michigan Court of Appeals also are tools of the prison-industrial complex.
Yesterday I posted a post on my blog that responds to George Will’s claim in his weekend Washington Post column that the auto bailout was a privatization of profits but a socialization of losses. The full post, which is at http://annarborist.blogspot.com/2011/07/i-beg-to-differ-in-part-mr-will.html, and is called “I Beg to Differ (in Part), Mr. Will,” says:
“In 1994, Bill Clinton proposed increasing homeownership through a ‘partnership’ between government and the private sector, principally orchestrated by Fannie Mae, a “government-sponsored enterprise” (GSE). It became a perfect specimen of what such “partnerships” (e.g., General Motors) usually involve: Profits are private, losses are socialized.”
—“Burning Down the House,” George F. Will, Washington Post, today
Will’s column discusses a new book by Getchen Morgenson and housing-finance expert Joshua Rosner that Will says “will introduce you to James A. Johnson, an emblem of the administrative state that liberals admire.” Johnson, for those of you who (like me) don’t instantly recognize the name, headed Fannie Mae during (I guess; Will doesn’t specify the dates) during the 1990s and early 2000s. He says the book details how Johnson and a few others, acting under the guise of compassion, used the government’s backing of Fannie and Freddie loans and the public policy of encouraging homeownership, to hugely enrich themselves.
“Morgenson and Rosner report that in 1998, when Fannie Mae’s lending hit $1 trillion, its top officials began manipulating the company’s results to generate bonuses for themselves. That year Johnson’s $1.9 million bonus brought his compensation to $21 million. In nine years, Johnson received $100 million.
“Fannie Mae’s political machine dispensed campaign contributions, gave jobs to friends and relatives of legislators, hired armies of lobbyists (even paying lobbyists not to lobby against it), paid academics who wrote papers validating the homeownership mania, and spread “charitable” contributions to housing advocates across the congressional map.”
But he also suggests, if I understand correctly, that it was Johnson and the other Fannie and Freddie folks, rather than the Wall Street crowd, who instituted the concept of securitized mortgages and credit default swaps—and (inferentially) then caused European banks to spur, say, the Irish housing bubble, which, last I heard, was not funded in any part by Fannie and Freddie. And he wrote the quote that opens this post, in which he claims that the government’s bailout—loans, most of which have been repaid—to GM and Chrysler have resulted in merely private profits. Unlike, y’know, the very substantial tax breaks given to […]