In it, but not of it. TPM DC

Bush-Appointed Former Scalia Clerk Upholds Constitutionality Of Health Care Law On Appeal


"No one is inactive when deciding how to pay for health care," wrote Judge Jeffrey Sutton -- a conservative legal star, who clerked for Supreme Court Justice Antonin Scalia, and was appointed by President George W. Bush -- in his concurring opinion.

Senior Judge Boyce Martin -- a Carter appointee -- went further still in his opinion. Though he affirmed the view that health care is a unique realm where no person is "inactive," he also argued that, even if that weren't the case, the Constitution places no limits on Congress regulating inactivity.

"[T]he Constitution imposes no categorical bar on regulating inactivity," Martin wrote.

In a partial dissent, Judge James Graham -- a Reagan appointee -- agreed with his colleagues on minor, procedural issues, but sided with the plaintiffs in arguing that Congress has exceeded its Constitutional powers.

"If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress's Commerce Clause authority would be," he wrote.

The Fourth and Eleventh Circuits will soon rule on similar cases, and the issue is expected to be resolved once and for all by the Supreme Court, perhaps as early as next year.

Read the decision below:

About The Author


Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight and the debt limit fight. He can be reached at