Regarding your editorial "Judge Sutton's Imaginary Mandate" (July 5): Constitutional challenges to the individual mandate face steeper legal hurdles than just the "as applied" versus "facial" challenge distinction raised by Judge Jeffrey Sutton in the Sixth Circuit appellate opinion. There remains a long line of unfortunate and flawed Supreme Court precedents regarding the broad scope of the powers granted to Congress under both the Commerce Clause (a de minimus level for activities to "substantially affect" interstate commerce) and the Necessary and Proper Clause (bootstraps supplied by regulatory schemes). Several current "judicial restraint" conservative Justices--John Roberts, Samuel Alito and Antonin Scalia--were complicit in at least one recent expansive interpretation (Gonzales v. Raich, U.S. v. Comstock) of federal regulatory power. The trio also remain reluctant to launch a new round of indeterminate interpretations of constitutional clauses, based on fine distinctions such as those between "activity" and "inactivity," that would be hard to enforce consistently.
Judge Sutton may have feigned powerlessness as a mere federal appellate judge to help chart a clearer direction in muddled High Court jurisprudence, and he overstated the review standard for a law that the last congressional majority was hard pressed to pass with a straight face.
A more fruitful line of challenge to the mandate will involve whether its sweeping assertion of national regulation remains "proper" within the constitutional structure of power between the federal and state governments. Nevertheless, it remains most likely that opponents of the individual mandate and the other interwoven abuses of the Affordable Care Act will have to win this fight "old school" at the ballot box in November 2012.
Thomas P. Miller is a resident fellow at AEI.