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Supreme Court's Health Care Moment: DOJ, Ex-Justice Stevens Say Listen to GOP Judge

Justice Stevens

First Posted: 09/29/11 01:02 PM ET Updated: 09/29/11 01:31 PM ET

WASHINGTON -- When the Justice Department submitted a petition to the Supreme Court yesterday urging it to declare once and for all that the 2010 health care overhaul is constitutional, the department made a point of mentioning the only Republican-appointed judge who has so far upheld the individual mandate. Indeed, the Obama administration made that point repeatedly.

The petition, filed in the case of U.S. Department of Health and Human Services v. Florida, asks the Court to reverse a decision by the U.S. Court of Appeals for the 11th Circuit, in which a three-judge panel split 2-1 to rule that the individual mandate exceeded Congress' power to regulate interstate commerce. Twenty-five states joined Florida in its challenge to the law, formally known as the Patient Protection and Affordable Care Act.

In the petition, the Justice Department repeatedly invokes a concurring opinion written by 6th Circuit Judge Jeffrey Sutton in a separate lawsuit challenging the health care law.

Sutton wrote in late June that "no one must 'pile inference upon inference' to recognize that the national regulation of a $2.5 trillion industry, much of it financed through" national health insurance companies, "is economic in nature." Before President George W. Bush nominated him to the 6th Circuit, Sutton, who also clerked for Justice Antonin Scalia 20 years ago, was a well-respected lawyer and law professor known for his advocacy of states' rights.

The 34-page petition cites Sutton's opinion with such frequency that it's surely trying to catch the attention -- and votes -- of the Supreme Court's conservative wing. In contrast, the Justice Department discusses the 6th Circuit's lead opinion by Judge Boyce Martin, who was appointed by President Jimmy Carter, for just a paragraph, despite Martin's robust defense of the health care law.

Retired Justice John Paul Stevens, speaking to The Huffington Post on Monday, anticipated the Obama administration's approach with his own praise of Sutton. Stevens said the judge "didn't get distracted about his thoughts on whether it made sense to do whatever the statute requires, but he just analyzed [the law's constitutionality] in terms of existing precedent."

"Of course," Stevens continued, "Judge Sutton is a circuit judge rather than a Supreme Court justice," and only the justices can overrule the Court's prior decisions on the commerce clause. When asked whether his former colleagues would exercise that power, Stevens replied, "There's always a possibility."

Nevertheless, Stevens said he hopes his former colleagues will resist the temptation to color outside the lines, as the Justice Department asserts the 11th Circuit did.

"I think you have to assume that the members of the Court, just like Judge Sutton, will be guided by existing law," Stevens said. "They're not going to make up new law just because it might be good policy or something like that."

Earlier on HuffPost:

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