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.