The judge who broke ranks

How very interesting: A conservative star on a federal appeals court decreed yesterday that President Obama’s health reform law – specifically, the key provision that requires Americans to buy insurance – is perfectly fine and dandy and constitutional.You read that correctly.For the first time, a federal appeals court has weighed in on health reform, ruling 2-1 in favor of the controversial insurance mandate…and the swing vote was none other than a judge who (a) was appointed to the federal bench by George W. Bush, and (b) had previously toiled as a clerk for Antonin Scalia.You read that correctly, too.What Judge Jeffrey Sutton did yesterday, in his concurring opinion, was to demonstrate a fealty to factual reality – as opposed to a blind adherence to ideology. In the long run, of course, there’s always the chance that Sutton’s opinion will be an outlier, that he will be the rare conservative jurist to break ranks and say Yes to the insurance purchase mandate – but, for now anyway, it’s downright refreshing to see someone with Sutton’s pedigree articulate the obvious.For instance, health reform law foes keep insisting that even though the U.S. Constitution gives Congress the right to regulate interstate commerce, health care and health coverage supposedly don’t qualify as interstate commerce. Sutton slam dunks that faux argument with this money quote, on page 38 of the appeals court opinion:”…the nature of modern health care favor(s) the validity of this law. No matter how you slice the relevant market — as obtaining health care, as paying for health care, as insuring for health care — all of these activities affect interstate commerce, in a substantial way. Start with obtaining medical care. Few people escape the need to obtain health care at some point in their lives, and most need it regularly. That explains why health-related spending amounted to 17.6 percent of the national economy, or $2.5 trillion, in 2009….Virtually all of this market affects interstate commerce, and many aspects of it — medical supplies, drugs and equipment — are directly linked to interstate commerce…”Call this mandate what you will — an affront to individual autonomy or an imperative of national health care — it meets the requirement of regulating activities that substantially affect interstate commerce.”Therefore: “If Congress has the power to regulate the national health care market, as all seem to agree, it is difficult to see why it lacks authority to regulate a unique feature of that market by requiring all to pay now in affordable premiums for what virtually none can pay later in the form of, say, $100,000 (or more) of medical bills prompted by a medical emergency.”Sutton also voiced a respect for judicial precedent, the principles established by previous U.S. Supreme Court rulings. (Conservatives always say that they want their judges to respect judicial precedent.) Sutton cited numerous rulings in which the high court gave Congress wide latitude to regulate interstate commerce – such as the 1942 Wickard case, which involved commerce on family farms. Here’s Sutton yesterday: “If, as Wickard shows, Congress could regulate the most self-sufficient of individuals — the American farmer — when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it.”Health reform foes also keep insisting, in their various court filings around the country, that Obama and Congress have no right to compel people to buy health coverage, that people should have the freedom to remain “inactive,” to forgo coverage if they so choose. Sutton is instinctively sympathetic to that sentiment; in his text, he voiced respect for “that most American of freedoms: to be left alone.”Then he summarily swept it aside.”Inaction is action…No one is inactive when deciding how to pay for health care,” he wrote, because those freedom-loving Americans who refuse to buy coverage (Sutton calls them “self-insurers”) inevitably shift the economic burden, in the form of higher premiums, to everybody else. Sutton pointed out that medical care to the uninsured cost $43 billion in 2008 alone – further empirical proof that we are all interconnected. I almost heard the distant echoes of the poet John Donne, who famously penned, “No man is an island entire of itself.”Then came this Sutton passage, on page 51:”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?…If Congress can do this in the health care field, what of other fields of commerce and other products?”Sutton was referring to the health reform foes’ slippery-slope argument, which posits that if we compel health coverage, “the next thing you know” the feds will be telling us how many peas to put on our plates, or whatever.But Sutton deep-sixed that argument as well: “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.”Indeed, Sutton writes that if the insurance requirement ultimately seems too intrusive, then it’s up to “the people’s political representatives, rather than their judges, to have the primary say” in fixing it. And isn’t that precisely what a conservative jurist is supposed to say? Isn’t that what the much-touted conservative doctrine of “judicial restraint” is supposed to be about? When the U.S. Supreme Court inevitably rules on the insurance requirement in the health reform law, perhaps swing-voter Anthony Kennedy will heed what his fellow Republican appointee has now articulated.