A notoriously gruff Reagan-appointed judge puts the Supreme Court on notice
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.