As noted
earlier, the Sixth Circuit court of appeals has upheld the Affordable Care Act and the individual health insurance mandate in it. This was the
first appellate review in the cases brought against the law, and "the first of three opinions to be delivered by separate courts of appeal that heard arguments in the health care litigation in May and June."
The opinion was the first to not break down strictly along seemingly partisan lines. In the 2-to-1 ruling, a judge appointed by a Republican president joined one named by a Democrat to write the majority opinion.
At the lower District Court level, five judges have divided on the question, with three Democratic appointees backing the law and two Republican appointees rejecting it....
The Sixth Circuit majority held that the mandate was “facially constitutional under the Commerce Clause” for two reasons.
“First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce,” Judge Martin wrote. “In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”
The court directly addressed whether a choice to go without health insurance qualifies as an “activity” that substantially affects interstate commerce, which is the standard set in prior Supreme Court decisions on the breadth of the Commerce Clause.
“The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan,” the opinion stated.
The majority emphasized that the case should not hang on distinctions about whether the failure to purchase insurance should be defined as activity or inactivity, a question the Supreme Court has never considered. “The constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label,” the judges said.
Probably the most politically significant point coming out of this, one that is most telling for the future of these cases, is pointed out at Think Progress by Ian Millhiser. That's the participation of Judge Jeffrey Sutton, a George W. Bush appointee, former Federalist Society officer, and former Scalia clerk, who writes: "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."
Why is that so important? Orrin Kerr puts his finger on it: Sutton is a "regular 'feeder' judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate." So the rejection of the "inactivity/activity" distinction, what Adam Serwer calls "a rhetorical loophole to appeal to Justice Antonin Scalia," has been rejected by a lower court stand-in for Scalia.
Reading the tea leaves in this, the mandate is likely to stand when the appeals reach the Supreme Court, which they will almost inevitably do. These hyper-partisan organizations pushing the court cases (and undoubtedly getting plenty of conservative money to do it) are largely engaged in highly expensive political theater. When it comes right down to it, the corporate-controlled Republican Party, and the corporatist conservative bloc on the Supreme Court, are unlikely to go against insurance companies in the end. And the insurance companies love the mandate. So while the legal arguments against the mandate are generally specious, the compelling interests of insurance companies will most likely rule in the end.