The Sixth Circuit Upholds the Individual Mandate

The opinions are here.  Take a close look at Judge Sutton’s concurring opinion, which does an excellent job in explaining why the action/inaction distinction is without merit.

UPDATE:  I wonder if Judge Sutton just killed his chance of ever being on the Supreme Court.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Orin Kerr says:

    Always frustrating when the VC is down at moments like this. I have the post written, but I . . . just . . . can’t . . . post . . . it.

  2. Gerard Magliocca says:

    Is this a case of our superior technology or your superior traffic?

  3. Marty L. says:

    Orin, come to the dark side . . . your post would be more than welcome at Balkinization!

    Especially frustrating for OK since the Sutton opinion is a “told ya so” moment for Orin if ever there was one!

  4. Brett Bellmore says:

    The case for the mandate being ‘constitutional’ isn’t much of a stretch, given all that’s already been declared ‘constitutional’. But that’s not to say it’s a good case, just that it comes after a long, long string of bad cases winning. Perhaps Sutton thinks it’s time to declare “game over”, enumerated powers doctrine is dead.

  5. Joe says:

    Per the update, depends on who nominates him. It can be used as a cover to show how “moderate” he truly is, getting to necessary Democratic votes.

  6. Dave Hoffman says:

    Per the update, would’t that be true (or false) either way he’d decided?

  7. Shag from Brookline says:

    What would Brett’s truly constitutional America look like:

    “The case for the mandate being ‘constitutional’ isn’t much of a stretch, given all that’s already been declared ‘constitutional’.”

    if the latter had not taken place? Like “Rehabilitating Plessy v. Ferguson” and “Debilitating Loving v. Virginia”?

    Brett, as usual, wields a broad brush as a salve to his suffering of “Wickburn.”

  8. Anon321 says:

    How this ruling affects Judge Sutton’s future elevation to the Supreme Court probably depends in large measure on what the conservative Justices currently on the Court do when they confront this issue. If, for example, Roberts, Alito, and (most importantly) Scalia agree with his reasoning, I doubt that this ruling will disqualify in the eyes of many conservative activists.

    Indeed, while I’m very hesitant to ascribe base motives to him, a cynic might suspect that Judge Sutton’s opinion in this case was in some respects a prediction that most of the conservative Justices will see things the same way when they consider the issue. If he ends up on the opposite side from them, his future elevation is probably toast: if he votes to uphold and they vote to strike it down, he’ll never be nominated; if he votes to strike it down and they vote to uphold, he’ll never be confirmed. His only hope is to predict where they’ll end up, in which case both parties view him as basically a mainstream judicial conservative. We’ll see if he’s right.