Judge Sutton's concurrence in last week's 6th Circuit ruling upholding the individual mandate of the Affordable Care Act is so effective because, more than any academic or judicial writing concluding that the mandate is constitutional, Sutton's analysis credits the claimants as raising a real objection. He feels the full force of the argument for an activity/inactivity line but finds the argument lacking nonetheless. His reasoning will have credibility with conservatives on the Supreme Court--even though he couches his conclusion with qualifiers about his limited role as a circuit judge.
That said, I do want to take issue with one smallish point Judge Sutton makes en route to his final conclusion. In addition to voting to uphold the mandate under the Commerce Clause, he writes separately to explain why he thinks that it cannot be sustained as an exercise of the power to tax. Congress could have structured a mandate as a tax, but here it did not, Judge Sutton concludes. One factor he cites en route to that conclusion is the fact that Congress, in the Act, invoked the Commerce power but not the Taxation power. It's not clear how much weight Judge Sutton gives this factor, but I think it ought to be given no weight.
We could have had a jurisprudence in which, in order for a law to be a valid exercise of some power of Congress, the law would have to include a provision stating that Congress is exercising that power. But in fact we have no such jurisprudence. Let me give three examples, starting with the Uber-Case on enumerated powers.
(1) I start with McCulloch v. Maryland, in which Chief Justice John Marshall upholds the power of Congress to charter the Second Bank of the United States by invoking what he calls the "great powers," including:
to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government.Now notice that the Act of Congress creating the Second Bank does not invoke any affirmative powers. To be sure, the Second Bank was modeled on the First Bank, and the Congressional Charter of the First Bank did list reasons for granting the charter that can be tied to the powers that Marshall invoked in McCulloch. The First Bank charter recites that having a bank will be:
very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans for the use of the government, in sudden emergencies; and will be productive of considerable advantages to trade and industry in general . . . .But even if we can map the First Bank charter's reasons onto the powers Marshall invoked in McCulloch, there is nothing whatsoever in the McCulloch opinion to indicate that Marshall thought formal invocation of a power by Congress was a prerequisite for sustaining an Act of Congress as falling within that power.
(2) The point is even more arresting in a much more recent case, Gonzales v. O Centro Espirita, in which the Supreme Court unanimously applied the Religious Freedom Restoration Act (RFRA) to the federal government less than a decade after having held that RFRA was invalid as applied to the states. What power did Congress exercise in passing RFRA as applicable to the federal government? The short answer, as Sarah Palin might say, is "you know, all of 'em." That is, because RFRA requires certain religious exceptions to federal statutes, the authority for RFRA (as applied to the federal government) is whatever power justifies whatever statute is yielding to RFRA in any particular case. Did Congress mention all of its powers in RFRA? Certainly not. Yet that didn't bother the Court in O Centro one bit.
(3) To be sure, in O Centro the Court assumed but did not directly decide the constitutionality of RFRA as applied to the federal government. So consider last year's decision in United States v. Comstock, upholding a federal statute authorizing civil detention of certain federal prisoners after they have completed their sentences. The Court found the law necessary and proper to running its prisons, which in turn is necessary and proper to enforcing the criminal law, which in turn is necessary and proper to effectuating the powers that Congress exercised in enacting those criminal laws in the first place--like the power to create a Post Office (in the case of mail fraud), the power to regulate interstate commerce (in the case of bank robbery), and the power to establish intellectual property (in the case of criminal IP piracy). Did the civil commitment statute in Comstock list "all of em" in a section of the law listing the powers Congress was exercising? Nope. The statute didn't list any powers. Did the Court nonetheless uphold the Act? You betcha.
Thus, I think Judge Sutton is wrong to the extent that he suggests (and he only barely suggests) that Congress must invoke a power in order for that power to be available to sustain an Act. Perhaps if Congress specifically disclaims a power in the Act, then it cannot later come back and defend the Act in Court on the basis of that power, but if there is such a rule, I don't think the Court has clearly articulated it. (The closest the Court has come to doing so is in the somewhat different context of rational basis scrutiny of state laws, in the Nordlinger v. Hahn case, where the Court said that a legislative ruling out of a possible purpose for a law makes that purpose unavailable in future litigation.) In any event, despite language making clear that Congress did not want to call the penalties under the ACA a "tax," the ACA does not clearly disclaim the taxing power as a basis for sustaining it.