Key Conservative Judge Endorses Affordable Care Act

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A Reagan-era district court judge rules that the Care Act is within the bounds of congressional power, but will the Supreme Court take his position when it hears the case?

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The closer we all get to a Supreme Court decision on the Affordable Care Act, the less important all the latest lower federal court rulings seem -- and the less media coverage they receive. That's a pity, now especially, because Tuesday's decision by the D.C. Circuit Court of Appeals, which upheld the constitutionality of Obama's health-care law by a 2-1 vote, is a big deal for many different reasons. And had the ruling been issued, say, four months ago, it's probably all anyone who cares about health care would be talking about right now.

Not today, though. Now the hearts and minds and eyes of Obamacaristas everywhere are focused solely upon the Supreme Court, and its docketing calendar, which any day now may disclose to the world that the health-care law is scheduled to be discussed at oral argument sometime early next year. With the showdown almost at hand, and right in time for the 2012 presidential campaign, the federal appeals court rulings that are straggling in have the feel of late arrivals to a party who are having a hard time finding a seat.

Which brings us to Seven-sky v. Holder, a lengthy but accessible opinion in which D.C. Circuit Judge Laurence Silberman, an appointee of President Ronald Reagan, held that the Care Act was a constitutional exercise of Congressional authority. Silberman's endorsement of the federal law is a huge political boon to the White House and supporters of the new measure because for decades he has been a Rushmorian face of conservative jurisprudence in the nation's capital. It will be fascinating to see whether and to what extent conservative critics of the ruling go after Silberman. If they do, it would be like eating one of their own.

The second significant part of the ruling is the language Judge Silberman used in rejecting the arguments made by opponents of the Care Act. This was no meandering thesis like we've seen before in this fight. Instead, it was a pragmatic acknowledgement of the reality of the impact health care has on human beings. For example, of the law, Judge Silberman wrote:

It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

Judge Silberman also hammered away at whatever is left of the legitimacy of the "action/inaction" dichotomy, which opponents of the health care law have raised in arguing that the law goes well beyond Congressional authority under the Commerce Clause of the Constitution. He wrote:

Appellants say that Congress cannot regulate based on such sweeping generalizations. Only individuals who are voluntarily engaging in an "activity" related to interstate commerce -- not the uninsured, who are "inactive" -- are within the scope of the Commerce Clause. The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants' argument. No Supreme Court case has ever held or implied that Congress's Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

Just like that, poof goes the ridiculous broccoli mandate!

The third significant part of the Tuesday's ruling is that D.C. Circuit Judge Brett Kavanaugh, an appointee of President George W. Bush, dissented from Judge Silberman's ruling only to the extent of concluding that the court had no jurisdiction to hear the merits of the case at this time. Judge Kavanaugh worked with Kenneth Starr during the Lewinsky investigation and was later implicated in the scandal involving the Bush-era torture memos. That he would be unwilling to take the opportunity to lend succor to the forces arrayed against the Care Act is interesting and perhaps even a bit revealing.

All of that said, the truth is that the justices now are free to heed or ignore all of the advice they have received to date from the dozens of lower-court judges who have scoured the language of the Care Act. That's why being an intermediate appeals court judge is such a drag. But Judge Silberman's ruling, especially, is a fairly good barometer of how the judiciary has reacted to the law. It doesn't guarantee any result, of course. But it ought to make the law's supporters feel a bit of momentum and a boost of energy now that the finish line is finally in sight.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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