The Sutton Concurrence in Hindsight

Sam Singer is a Chicago-based lawyer and a graduate of Emory Law School.

Judge Sutton’s decision upholding the individual mandate was a low point for opponents of the Affordable Care Act in their two-year push to overturn the law in the federal courts. It was bad enough that Sutton became the first judge appointed by a Republican to reject the challenge, and worse still that his decision tipped a split court in favor of the Justice Department, handing the government its first win at the appellate stage. But what really grated opponents was the possibility that Sutton’s opinion could come back to haunt them in the form of copycat opinions from likeminded conservative judges.

In retrospect these concerns seem misplaced. Although Sutton’s decision was widely viewed as a turning point, a decision that could change the complexion, if not the trajectory, of the litigation, there is no indication that its influence stretches beyond the Sixth Circuit, where Sutton supplied the controlling analysis in a 2-1 vote to uphold the individual mandate.  This is a curious development, and the fading influence of the Sutton concurrence may offer clues about the Justice Department’s outlook going forward and what we can expect to see from the Supreme Court.

Sutton’s concurring opinion had wide appeal because it was novel and narrow and refreshingly restrained.  Striking out in his own direction, Sutton found a way to reject the challenge without taking a firm position on its most controversial subject—whether Congress can force uninsured Americans, on pain of penalty, to purchase coverage.  He did not so much uphold the individual mandate as refuse to strike it down, reasoning that a “facial” attack on a statute, as opposed to a narrower “as-applied” challenge, is an all-or-nothing proposition, and must fail unless no scenario exists in which the challenged law is valid.

The challenge to the individual mandate did not have a prayer under this rubric.  There are plenty of circumstances in which the mandate can be applied constitutionally; under Sutton’s approach, a judge looking to swiftly dispose of the litigation need only identify a few. Judge Sutton, for his part, named four: individuals who are already insured but would be forced to expand their coverage, individuals who are already insured but would be forced to maintain coverage, individuals who live in states that require insurance, and individuals under 30 who under the Affordable Care Act need only obtain catastrophic coverage. In each case, he explained, the individual mandate affects a class of individuals already active in the market for insurance, such that it could not be described as regulating inaction.  Having identified several legitimate applications, Sutton concluded the law’s sweep is constitutional enough to withstand the facial challenge, without regard to whether it could be constitutionally applied to the uninsured.

Sutton’s opinion was an especially artful example of constitutional avoidance, and his approach seemed an ideal template for judges looking to get in and out of this controversy without making noise. Here was a third way, a solution for judges uncomfortable with the minimum coverage provision but weary of the consequences of striking it down. The opinion was exalted by some of the Affordable Care Act’s most prominent supporters, with Harvard Law’s Charles Fried describing it as “devastatingly convincing,” and Duke’s Walter Dellinger calling it a “complete vindication” of the constitutionality of the individual mandate. Commentators dubbed it the conservative case for upholding the mandate and predicted it would change the way courts approach the litigation.  Professor Mark Hall said the Sixth Circuit’s opinion, with one emphatic supporter, one dissenter, and one hedged in the middle, “lays out exactly what were likely to see” when one of the challenges reaches the Supreme Court.

Looking back, not much has come of Sutton’s concurrence, and all the excitement over the opinion seems overblown. The theory that the opinion would serve as a roadmap for future judges has not been borne out.  Nine appellate judges considered the challenge to the individual mandate after the Sixth Circuit issued its opinion.  None of them adopted Sutton’s facial/as-applied approach.  The theory that the opinion would improve the government’s chance of success appears to have been similarly misguided. The government has gained no mileage from the Sutton opinion outside the Sixth Circuit, and its briefing before the Supreme Court suggests it has no intention of trying.  The Justice Department, of course, cannot be expected to give voice to every legal theory advanced in support of its position.  But when the legal theory offers a defensible alternative to a deeply divisive constitutional argument and comes gift wrapped from a highly regarded conservative judge, it generally pays to mention it.  Even if Sutton’s approach did not take center stage, it could still have been presented as a plausible alternative for justices seeking out a middle ground.

Why would the Justice Department squander an opportunity to profit from Sutton’s opinion? One explanation is that the Solicitor General believes Sutton’s more measured approach would take away from the government’s defense of the statute, which is as full-throated and unapologetic as they come.  But surely the Justice Department can mount a forceful defense of the individual mandate while falling back on Sutton’s conclusion that the constitutional aspects of the individual mandate cure any potential unconstitutional ones.  Nobody ever faulted a lawyer for hedging his bet.

More plausibly, the Solicitor General left out Sutton’s analysis because he thought it would sink like a cinderblock. Although you wouldn’t know it from Sutton’s opinion, the facial/as-applied distinction is not a fixture in this setting. The Supreme Court has gone decades without invoking it in a Commerce Clause case, and there is a growing chorus of constitutional scholars who maintain the doctrine has no place in litigation over the scope of federal power.

In fairness to Sutton, the Supreme Court has sent mixed signals to lower courts about the proper way to approach a constitutional challenge. The Court has stated a preference for as-applied challenges, warning that a facial attack is “strong medicine” that should be used only on rare occasions. The justices have admonished lower courts about “constitutional avoidance” and urged them to favor the narrow ruling over the more sweeping one. The Court’s position is embodied in United States v. Salerno, a pre-trial detention case in which Chief Justice Rehnquist explained that a “facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully,” for the “challenger must establish that no set of circumstances exists under which the Act would be valid.”

But if Salerno still holds in the Commerce Clause setting, there is no evidence of it in the Supreme Court’s recent decisions.  United States v. Lopez, the bedrock of modern Commerce Clause jurisprudence, was resolved without regard to the facts that gave rise to the challenge. The holding was limited to the proposition that Congress may not, under its commerce authority, make it a federal crime to carry a gun near a school. That was all; the justices did not pause to consider whether there were circumstances in which the Gun Free School Zones Act could be applied constitutionally, much less whether those circumstances were present in Lopez. There was no mention of Salerno or constitutional avoidance, no discussion of the difference between a facial and as-applied challenge.

The Court held a similarly agnostic view of post-enforcement facts in United States v. Morrison, the second crucial Commerce Clause decision of the Rehnquist era. There, the justices struck down a provision of the Violence Against Women Act that created a federal cause of action for victims of domestic violence. As it had in Lopez, the Court concentrated on the validity of the law as it was enacted, and did not concern itself with the circumstances that gave rise to the challenge.

The challenges in Lopez and Morrison would have failed under Sutton’s approach. One need not strain to imagine a situation where the presence of a gun in a school, or an act of domestic violence, would affect interstate commerce. Suppose prosecutors had charged someone carrying a gun intended for use in an interstate gang war. Or suppose the gun in question had traveled across state lines, or had been smuggled into the United States. In any of these examples, the application of the Act would clearly fall within the ambit of activity embraced by the Commerce Clause. The Act, to use Sutton’s language, would have “constitutional applications,” and therefore would not be susceptible to a facial challenge.

But while Lopez and Morrison should have given Judge Sutton pause, Gonzales v. Raich should have stopped him dead in his tracks.  In Raich, the plaintiffs asked the Court to hold that the Controlled Substance Act was unconstitutional as applied to the intrastate use of medicinal marijuana for personal consumption.  In rejecting the argument, the Court questioned the very logic behind an “as-applied” Commerce Clause challenge, explaining, “where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class.”

Nicholas Rosencranz, a law professor at Georgetown, comes right out and says what the Supreme Court has been willing only to imply:  All challenges to Congress’s commerce authority are facial by nature. In his view, since Congress is the subject of the commerce clause, Congress is the only actor that can run afoul of it. The commerce authority can be exceeded only when Congress acts – that is, when its two houses sign a bill into law–and there is no such thing as a violation of the commerce power that stems from executive action.  But Rosenkranz takes the argument a step further: Since the text of the Commerce Clause does not contemplate what happens after Congress enacts a law, the story of its enforcement is irrelevant to the constitutional analysis. “The specific facts of enforcement cannot matter here,” he explains, “for the simple reason that that constitutional violation is complete before those facts arise.”

This theory raises some uncomfortable questions about Sutton’s opinion.  If the facial/as-applied distinction has no place in this setting, is it still proper to uphold a challenged law on the ground that it is mostly constitutional?  If not, as the Supreme Court’s precedent would suggest, what is the legal effect of a holding that tiptoes around a pressing constitutional question?  What, in other words, is the legal effect of a holding that concludes a law’s constitutional features can cure any potential unconstitutional ones?  Is that even a legal holding at all?  Anyone willing to defend Sutton’s approach would have to grapple with these questions.  The Justice Department, it seems, is not willing to.

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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).