Just in time for Thursday's Supreme Court conference, the Affordable Care Act Tuesday was upheld Tuesday in an opinion by one of America's most feared conservative judges -- Judge Laurence Silberman of the District of Columbia Court of Appeals, a jurist so gruff he is rumored to make some lawyers cry just by agreeing with them. Silberman is also a conservative icon -- Ronald Reagan appointee, friend and sometime mentor to Clarence Thomas, co-chair of the Iraq Intelligence Committee, winner of the Presidential Medal of Freedom, Second Amendment hard-liner. Silberman's opinion is significant for two reasons. First, he becomes the second marquee conservative, after Judge Jeffrey H. Sutton of the Sixth Circuit, to reject the main constitutional argument against the Act.
Second, the opinion removes one reason why the Supreme Court might have wanted to delay responding to the government's petition for review of Eleventh Circuit's decision striking down the act. Silberman's wrote for himself and Senior Judge Harry Edwards, a Carter appointee. (The third judge on the panel, Judge Brett Kavanaugh, argues in a concurrence -- as did two judges of the Fourth Circuit -- that the plaintiffs' case is barred by the Anti-Injunction Act, which forbids taxpayers to challenge taxes until they have actually paid them.) The chief argument against the Affordable Care Act's "individual mandate," which requires most taxpayers to maintain health insurance coverage or pay a penalty on their tax returns, is that it is "regulation of inactivity": uninsured taxpayers have made a decision to remain outside of interstate commerce in insurance, and can't be dragged into it by government edict.
The government, for its part, argues that virtually every human alive in this country will at some way participate in the health-care market. The refusal of healthy, solvent taxpayers to take responsibility in advance for their health care thus means that many of them must later be cared for at public expense.
Of the "inactivity" argument, the D.C. Circuit opinion says, "appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent." Article I § 8 gives Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The word "regulate," in the 18th Century and today, can mean "[t]o direct . . . [t]o order; [t]o command." Further, the Supreme Court has allowed regulation and even prohibition of other "inactivity" -- such as mere possession of drugs or of child pornography. "[T]he only recognized limitations" from caselaw, the opinion says, are "that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible."
Deprived of precedential arguments, Silberman notes, the challengers "emphasize both the novelty of the mandate and the lack of a limiting principle." But "appellants' proposed constitutional limitation is equally novel."
The opinion expresses concern about "the government's failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce." But "it suffices for this case to recognize... that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services."
The mandate "seems an intrusive use of legislative power" -- though no more of one than the Civil Rights Act of 1964 or the Controlled Substances Act, the opinion notes. The validity of that "encroachment on individual liberty," however, is "a political judgment rather than a recognition of constitutional limitations."
The bottom line is that the "individual mandate" fits neatly into nearly a century of Commerce Power precedent. One needn't conclude that Laurence Silberman likes the act. Perhaps he might even find a way to strike it down if he were a Supreme Court Justice, rather than a Circuit Judge powerless to overturn that century of precedent. As Judge Sutton wrote in his Sixth Circuit opinion, "the Supreme Court," as opposed to the Courts of Appeals, "has considerable discretion in resolving this dispute."
But the D.C. Circuit's decision reminds us that, if a majority of this conservative Court does decide to scuttle the ACA, it will almost certainly have to scuttle or vitiate that century of precedent -- the legal basis upon which regulation of the national economy depends.
The widespread apprehension that they may do so is not misplaced; this Court, in many ways, is a radical one. But Silberman's opinion is a warning from a friend: such a decision would be radical indeed.
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