A VICTORY FOR HEALTHCARE: Challengers of President Obama’s Affordable Care Act couldn’t have asked for a more favorable judge to hear their case than Jeffrey Sutton, who cast the deciding vote on June 29 in the first federal court of appeals decision on the law’s constitutionality. Sutton is not just a former law clerk to Justice Antonin Scalia, a George W. Bush appointee and an active member of the Federalist Society; until his nomination to the US Court of Appeals for the Sixth Circuit, he was the leading advocate on states’ rights before the Supreme Court. He argued, successfully, that Congress could not impose the Age Discrimination Act or the Americans with Disabilities Act on state employers and could not enact the Violence Against Women Act. Liberal groups vigorously opposed his nomination to the Sixth Circuit precisely because of his vehement states’ rights views.
The constitutional challenge to Obamacare turns on a states’ rights claim. Challengers argue that the law’s requirement that people who can afford to buy healthcare insurance must do so or pay a fine is beyond Congress’s power under the Commerce Clause and therefore remains the exclusive prerogative of the states. If such an argument would appeal to anyone, it would be Judge Sutton. Yet when he cast his decisive vote, he sided with the Obama administration and upheld the law, reasoning that Congress’s action went no further than regulations the Supreme Court has upheld in the past. As sympathetic to states’ rights as Sutton is, he could not find a way to support the challenge. That’s good news for those who believe that it’s about time the United States joined the rest of the developed world in providing basic healthcare for all its citizens. If those challenging the healthcare reform law could not persuade Judge Sutton, they are likely to have a tough time in the Supreme Court. DAVID COLE
A TOKEN TORTURE INVESTIGATION: The Justice Department has severely narrowed its inquiries into the Bush-era torture regime. On June 30 Attorney General Eric Holder announced a full criminal investigation by the department into the deaths of two CIA detainees, but said it will not further pursue inquiries into the alleged abuse of many others in US custody over the past decade. Holder said that based on a two-year review by federal prosecutor John Durham, expanded investigation into ninety-nine out of 101 considered cases “is not warranted.”
Holder did not identify the two cases, but it has been widely reported that one involves the highly publicized death of Manadel al-Jamadi at Abu Ghraib, while the other involves the death of Gul Rahman at a secret US prison in Afghanistan. Rahman reportedly froze to death after being shackled half-naked to a concrete wall.
Human rights organizations offered support for the new investigation but condemned the more consequential decision to close the other inquiries. Jameel Jaffer, deputy legal director at the ACLU, said the narrow investigation “is not proportionate to the scale and scope of the wrongdoing.” But others were relieved. “I welcome the news that the broader inquiries are behind us,” declared Leon Panetta on his last day as CIA director before taking charge at the Pentagon. “We are now finally about to close this chapter of our agency’s history.” MARC KILSTEIN