UPDATE: The petition in Thomas More Law Center, et al., v. Obama, has been docketed today, as 11-117.
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The first constitutional ruling by a federal appeals court on the key part of the new federal health care law has now been challenged in the Supreme Court, by a conservative legal advocacy group in Michigan — the Thomas More Law Center in Ann Arbor. The petition, filed Wednesday, is here. Although the appeals court did not rule finally on the validity of the mandate that every American have health insurance by 2014, the new challenge asks the Court to decide that issue in a final way.
Besides pressing its sweeping constitutional protest to the insurance mandate as it would apply to everyone, the petition sought to raise a new challenge — not passed upon by the Sixth Circuit Court in its June 29 ruling — that the law is invalid as it applied to the three individuals who joined the Thomas More Law Center in the case. That addition may have been an attempt to increase the case’s chances for review.
The petition raised two questions: is the individual insurance mandate beyond Congress’s authority under the Commerce Clause, and is that valid when applied to the three individuals, two of whom do not have health insurance and do not plan on their own to obtain it?
On the second question, the “as-applied” issue, the petition appeared to concede that this was a new challenge. It noted that what turned out to be the controlling opinion in the Circuit Court — the partial concurrence of Circuit Judge Jeffrey S. Sutton — meant that the appeals court “essentially avoided answering the fundamental question of whether Congress acted within its Commerce Clause power” in adopting the insurance requirement.  Ordinarily, the Supreme Court does not pass upon issues not decided first in a lower court.
This is not the first case the Justices have seen among the score of challenges to the new health law.   On November 8, the Court denied review of Baldwin v. Sebelius (10-369), seeking to challenge the dismissal of a lawsuit against the insurance provision.  That case is now pending in the Ninth Circuit Court.
The Michigan case, however, is the first one to arrive on the Court’s docket after a federal appeals court ruling on the merits.  Decisions are expected fairly soon from two other Circuit Courts, the Fourth and the Eleventh, and other cases are moving forward in other appeals courts as well.  How many of them will reach the Justices in time for action in the next Term, starting October 3, is unclear.  The Justices are not expected to act on any of them during their summer recess, because none presents an emergency situation.
The Sixth Circuit, in reaching the merits of the challenge, split three ways among the three judges on the panel. One judge voted to uphold the insurance mandate as is, one judge wanted to strike it down, and the third — Judge Sutton — voted to reject only the “facial challenge.” Because the Sutton opinion provided the lowest common denominator among the three, it was the controlling opinion. Facial challenges are the hardest to win, because they require that the challenger show that there is no circumstance under which a law could be validly enforced.  The present Supreme Court actually frowns on such challenges.
What the Sixth Circuit’s split decision meant was that, while it did not either strike down or uphold the constitutionality of the insurance mandate, it essentially would postpone review of the provision’s validity until it actually was enforced against an individual in a specific factual setting. In the meantime, the requirement would remain on the books, awaiting enforcement after it takes effect in about three years.
Whether the Supreme Court would be willing to take on a facial challenge to the law, without any actual enforcement of it in a real setting, seems to be at least doubtful.  The Court might prefer to wait to see if any other lower court actually strike down the provision.
The Thomas More Law Center petition basically repeated constitutional arguments that have been pressed in all of the cases in the federal courts against the insurance mandate: that is, that Congress has power under the Commerce Clause only to regulate something that is economic in nature, and that, even then, it can regulate only an actual “activity” — that is, something people actually do, rather than something they refrain from doing.
The new law’s health insurance requirement, according to the petition, applies to “a legal resident of the United States who chooses to sit at home and do nothing. This resident, quite literally, merely exists (i.e., he is ‘living’ and ‘breathing.’)….He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme.”
The petition also relied upon a by-now familiar conjecture about what else Congress might do with its power if it were allowed to require an individual to buy a product (here, health insurance) — a list of what the petition called “naked power grabs.”  If Congress’s action here is upheld, the Center contended, “the federal government will have the absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law, such as eating certain foods, taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy.” In a footnote, it added that Congress might also want to require everyone to buy life insurance.
On the merits of the constitutional challenge, the petition sought to weave its way between two quite opposing sets of Supreme Court precedents. Those are, on the side of limiting Congress’s Commerce Clause powers, United States v. Lopez in 1995 and United States v. Morrison in 2000, and, on the side of broadly upholding such powers, Wickard v. Filburn in 1942 and Gonzalez v. Raich in 2005. It sought to reconcile the two lines of precedents in its favor by noting that, even in the Raich decision, the Court allowed Congress to regulate only an actual activity that was economic in nature.
This new case was filed in time, if the normal schedule is followed, to be considered by the Court at its first private Conference, on September 26.  The federal government, under Court Rules, has 30 days to file a response to the petition, although it is entitled to ask for additional time to do so — as if often does.
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