In a blistering dissent, Judge Stanley Marcus, also a Clinton appointee but a Republican originally nominated to the federal bench by Ronald Reagan, intimated that his colleagues were legislating from the bench. "Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly," he wrote. "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, or to craft a legislative response more sharply than the legislative branch of government has chosen."
In a previous ruling, the Sixth Circuit court upheld the constitutionality of the mandate. In that case, Republican judge Jeffrey Sutton, until then a rising star in conservative jurisprudence, ruled with the plaintiffs that the mandate is constitutional. For score-keepers, that means one very conservative Democratic appeals court judge (Hull) has ruled against the mandate and two Republican judges (Sutton and Marcus) have upheld it.
This sets the stage for the question of the mandate's constitutionality to be settled by the Supreme Court. It also appears to diminish the possibility that the entire law will be voided. Conservative health care reform foes have rested their hopes on this challenge, brought by the governors and attorneys general of 26 states, and others, and viewed today's ruling as necessary, to stand a chance of prevailing before the high Court.
You can read the opinion and dissent below: