JURIST Guest Columnist Charles Fried of Harvard Law School says that the recent appellate court ruling finding the individual mandate constitutional gave the law’s opponents their full due in a careful and thoughtful manner, but went on to properly dismiss their arguments…

Recently, the US Court of Appeals for the Sixth Circuit upheld the individual mandate provision of the health care reform legislation. Although the opinion of the court was written by Judge Boyce Martin, Judge Jeffrey Sutton’s concurrence provides the controlling rationale. Judge Sutton’s opinion in the case is a remarkably thorough, balanced and thoughtful opinion. It gives the objectors to the mandate their full due. It does what serious jurists should but too often do not do: consider the arguments in their best light, not their worst. This is why his conclusion is so devastatingly convincing. I cannot do better than to commend this model of careful thought and analysis to every interested person’s attention.

I would add only a two observations: First, I wonder if we are not misled by trying to meet the activity/inactivity objection—although Judge Sutton does so. As Chief Justice John Marshall stated in Gibbons v. Ogden and McCulloch v. Maryland, Congress has the power to regulate a subject matter: commerce. The activity/inactivity distinction nowhere occurs in his opinions or in subsequent cases. If none of the subsequent cases are cases of inactivity, that is not a point against the mandate; many new regulatory schemes include aspects of novelty (some perhaps far greater than what is presented here—consider the various environmental laws). Undoubtedly health insurance is commerce. Following Justice Marshall, what Congress has done is regulate it. As Justice Marshall also teaches us, once a matter is within the power of Congress, that power is (in his word) plenary, unless its mode is in some sense improper. So here is a subject (health insurance) and here is a regulation of it, which is unquestionably necessary to the success of the regulatory scheme. Even the egregious opinion from the US District Court for the Northern District of Florida acknowledged that necessity, which is why it struck down the whole law. Why is that not the end of the inquiry? As Justice Robert Jackson wrote in Wickard v. Filburn: “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions and restrictions thereon.”

Then there is the “where are the limits?” argument. The limits are the limits implicit in the concept of commerce. A person committing a violent act against another is not commerce, as held by the Court in US v. Morrison, and the attempt by Congress to regulate it was for that reason outside its power. Remote and suppositious relations between such actions and commerce were properly rejected. However, there is no such reach here. Health insurance is commerce and the mandate is a necessary part of this scheme for regulating it.

But is this regulation “proper?” To urge its impropriety in terms of activity/inactivity or individual liberty, or the right to be let alone is not a commerce clause argument. A general liberty argument would be fatal to similar state regulation; and Judge Sutton disposes of the Tenth Amendment argument masterfully.

Charles Fried is the Beneficial Professor of Law at Harvard Law School. He was Solicitor General of the United States from 1985-89, and an Associate Justice of the Supreme Judicial Court of Massachusetts from 1995-99. During his career at Harvard he has taught numerous classes, including Commercial Law, Constitutional Law and Federal Courts, Appellate and Supreme Court Advocacy.

Suggested citation: Charles Fried, Health Care in the Sixth Circuit: A Devastatingly Convincing Decision, JURIST – Forum, June 30, 2011, http://jurist.org/forum/2011/06/charles-fried-health-care-ruling.php.