JONATHAN COHN AUGUST 12, 2011
On Friday, the 11th Circuit Court of Appeals issued a decision in the case against the Affordable Care Act. It's not the decision that defenders of the law wanted.
Two of the three judges found that the individual mandate -- that is, the requirement that Americans of means contribute to the costs of health care, either by obtaining insurance or paying a fee to the government -- is unconstitutional. The judges declined to invalidate the entire law, as a lower court judge in Florida had done. But they did not mince words about the mandate, saying that it "is unprecedented, lacks cognizable limits, and imperils our federalist structure."
I strongly disagree, as regular TNR readers know. The decision is more than 300 pages long, so I don't want to comment on it substantively without reading it throughly and consulting some scholars. One key issue, though, is worth addressing now. Frank Hull is one of the two judges who signed this decision. And she took her seat on the bench in 1997, after Bill Clinton appointed her. That makes her the first Democratic appointee, at any level, to rule against the individual mandate.
But does that history belie her ideological predisposition? Ian Millhiser, a policy analyst at the Center for American Progress, thinks so. Via e-mail, he writes:
Although Frank Hull’s nomination to the 11th Circuit has Bill Clinton’s name on it, she got Clinton’s nod because the GOP-controlled Senate would not confirm a progressive or even centrist judge to this seat, and Clinton decided it was better to appoint a very conservative judge than leave this judgeship vacant. Since joining the court, Hull has consistently restricted individual rights and favors prosecutors over criminal defendants. We now know that she also holds a very radical view of Congress’ enumerated powers. That is unfortunate, but it also places her well to the right of Chief Justice Roberts and Justice Kennedy.
Millhiser's argument, which he fleshes out in a new post for Think Progress, seems to be correct. According to media accounts, Clinton appointed Hull to 11th Circuit because she was acceptable to Orrin Hatch, then chairman of the Judiciary Committee, who had blocking Clinton's more liberal appointees. At the time, an article from the Atlanta Journal-Constitution noted that Hull's "judicial philosophy has been described as moderate to slightly conservative."
Also worth remembering: The dissenting vote in this case comes from Chief Justice Stanely Marcus, a Republican whom Ronald Reagan first nominated to the federal courts. He's actually the second Republican appointee to uphold the law. The first was Judge Jeffrey Sutton, whom George W. Bush put on the bench and who backed the mandate when it went before the 6th Circuit, in Ohio. I'm not sure how much import to give Marcus' history. But most observers consider Sutton, a former Scalia clerk, to be a serious conservative.
All that said, this decision further scrambles the partisan categories and evens the score at the appellate level, with one decision for and one against the mandate. It also eliminates any remaining chance the Supreme Court might pass on the case altogether.
So while I'm busy reading the decision this weekend, you might want to clear your calendars for next June, at the end of the court's term. As journalist and world-class legal expert Jeffrey Toobin says, this is shaping up as "the biggest case since Bush v. Gore."
Update: I added some material on Hull's history.