The Republican’s dissent

At the district court level, rulings on the Affordable Care Act were regrettably partisan: two judges nominated by Republican presidents ruled against the law; three judges nominated by Democratic presidents did the opposite.

At the appellate level, this dynamic is not holding up. At the 6th Circuit, Judge Jeffrey Sutton, a nominee of George W. Bush, was expected to be a key ally of the right in undermining the law. He did the opposite, ruling in its favor.

Today, at the 11th Circuit, a conservative Clinton nominee, Judge Frank Hull, agreed that the individual mandate is unconstitutional, while a Reagan nominee, Judge Stanley Marcus, wrote a stinging, bordering on furious, dissent (pdf).

Court rulings don’t generally make for easy reading, but Marcus’ blistering response to today’s ruling is pretty entertaining. Note how he accuses his colleagues of judicial activism in ruling against the ACA’s mandate provision:

“Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly. This approach ignores the wide regulatory latitude afforded to Congress, under its Commerce Clause power, to address what in its view are substantial problems, and it misapprehends the role of a reviewing court. As nonelected judicial officers, we are not afforded the opportunity to rewrite statutes we don’t like.”

The majority’s ruling emphasized that health care has “traditionally” been a state matter, and used this reasoning to rule against the mandate. Marcus didn’t care for this, either.

“It would surely come as a great shock to Congress, or, for that matter, to the 47.5 million people covered by Medicare, the 44.8 million people covered by Medicaid, and the overwhelming number of employers, health insurers, and health care providers regulated by ERISA, COBRA, and HIPAA, to learn that, because the health care industry also ‘falls within the sphere of traditional state regulation,’ Congress was somehow skating on thin constitutional ice when it enacted these laws.”

But I laughed out loud when Marcus responded to the majority’s argument that the mandate is constitutionally impermissible because it’s never been done before.

“In the course of its opinion, the majority also attaches great significance to the unprecedented nature of the legislation before us. It is surely true that, as the district court concluded, the individual mandate is a novel exercise of Congress’ Commerce Clause power. But the mere fact of its novelty does not yield its unconstitutionality. […]

Every new proposal is in some way unprecedented before it is tried. And to draw the line against any new congressional enactment simply because of its novelty ignores the lessons found in the Supreme Court’s Commerce Clause cases.”

Here’s hoping Justice Kennedy, at a minimum, takes note.