Ilya Somin, Volokh Conspiracy's most prolific blogger on the constitutionality of the federal health care legislation (and a confirmed opponent), says that today’s 6th Circuit decision upholding the constitutionality of the individual mandate is "undeniably a setback for mandate opponents" because, up until now, judges’ votes in the mandate cases have split along ideological and partisan lines. Judge Boyce Martin, a Carter appointee, wrote the majority opinion, but it is the concurrence of G.W. Bush appointee Jeffrey Sutton that is drawing the most attention. Somin is highly critical, but his fellow blogger, Orin Kerr, praises the concurrence, and explains why it is noteworthy:
Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.
U.S. District Judge James L. Graham (Southern District of Ohio), sitting by designation, dissented.
ScotusBlog's Lyle Denniston's conclusion is that the individual mandate survived its first federal appellate test by only a narrow margin.
