The Sutton Concurrence in Hindsight

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5 Responses

  1. Sam Bagenstos says:

    Hmm. It’s a little odd to say that the SG left out Judge Sutton’s analysis when the word “Sutton” appears 14 times (by my control-f’s count) in the SG’s merits brief on the individual mandate issue. Judge Sutton had quite a lot to say about what the Commerce Clause means, on which the SG relies and which this blog post seems to ignore.

  2. Dan Lis says:

    Its no surprise that Judge Sutton was mentioned that many times, but it seems the point of the article is not that Sutton was ignored, but that the SG isn’t adopting his analysis.

  3. AF says:

    It’s also a little odd to refer to Judge Sutton’s opinion as an “example of constitutional avoidance.” Judge Sutton squarely holds that the Affordable Care Act is constitutional under the “substantial effects” test. 651 F. 3d at 556-58 (“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.”) And he squarely rejects the challengers’ argument that the Commerce Clause contains an action/inaction dichotomy that limits congressional power. 651 F. 3d at 560-64 (“Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No — for several reasons.”)

    The only question that Judge Sutton avoids is whether a future, as-applied challenge could conceivably be viable. His view is that it would not, but he doesn’t think that is necessary to decide. 651 F. 3d at 564 (“The Commerce Clause permits Congress to make flawed generalizations, and that at most is what might be said about the overbreadth of this law. But even if that were not the case, even if the Constitution prohibited Congress from regulating all of the self-insured together, that would not require a court to invalidate the individual mandate in its entirety.”) 651 F. 3d at 566 (“While future challenges to the law have hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate as the relevant agencies implement it, and as the “lessons taught by the particular,” Sabri, 541 U.S. at 608-09, 124 S.Ct. 1941, prove (or disprove) that Congress crossed a constitutional line in imposing this unprecedented requirement. Just as courts should refrain from needlessly pre-judging the invalidity of a law’s many applications, they should refrain from doing the same with respect to their validity.”).

    In sum, Judge Sutton accepted the government’s arguments and rejected the challengers’ arguments. That is the significance of the opinion and it has not faded, as evidenced by the DOJ’s frequent citation of Judge Sutton’s opinion in its Supreme Court briefs.

  4. Orin Kerr says:

    As Sam Bagenstos suggests, the facial/as-applies aspect of Sutton’s opinion was only one part of that opinion, and the rest of it has had a lot of influence on DOJ’s brief. Perhaps you mean to say just that the facial/as-applied discussion in Sutton’s opinion hasn’t been influential so far?

    If so, that’s true, but that’s just because DOJ is focused on what will win rather than what the cases say. Sutton is bound by Supreme Court precedent, so he has to accept Salerno at face value even if everyone knows it’s DOA at the Supreme Court. DOJ isn’t so bound.

  5. Yes, exactly. See The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1273-81 (2010).

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1611210