Brutal: D.C. Circuit upholds ObamaCare mandate — in opinion authored by Reagan appointee

posted at 5:39 pm on November 8, 2011 by Allahpundit

Not just any Reagan appointee, either. It’s Laurence Silberman, a guy I’ve described before quite rightly as a “conservative judicial icon.” (Frum Forum has a quickie bio.) Four years ago, he wrote the landmark D.C. Circuit opinion striking down Washington’s gun ban as a violation of the Second Amendment; a year later, the Supremes affirmed his decision. And now … this.

Dude, I’m nervous.

“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 … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.”…

In the latest case, Judge Brett Kavanaugh broke with the other two justices on the panel and said the court did not have jurisdiction to decide the case.

Says, the Journal, correctly, “The D.C. Circuit’s rulings traditionally get particularly close attention from the Supreme Court, in part because four of the justices—including Chief Justice John Roberts—previously sat in that circuit.” The killer aspect of Silberman’s opinion isn’t merely that he voted the wrong way, it’s that it’s an (almost) unqualified endorsement of the most expansive possible reading of the Commerce Clause. Which, in fairness, is in line with Supreme Court precedent. A choice quote from Time, which notes that Silberman was overheard scoffing at the anti-ObamaCare position even during oral arguments:

“The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument,” he wrote. “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.”

As for the appellant’s argument that penalizing inactivity — not carrying insurance as opposed to, say, actively breaking the speed limit– was similarly out of bounds, he was every bit as firm. “To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word ‘activity’ to describe behavior that was either regarded as within or without Congress’s authority,” Silberman argued. “But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether ‘inactivity’ can also be regulated.”

Silberman ceded that the ACA’s mandate marks an unprecedented new federal power and professed a “discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates.” But he also argued that Congress was in its right to seek a novel solution to a novel problem. “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,” he wrote. “Moreover, the novelty cuts another way. We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

So there you go: Congress is now free to regulate commercial activity even when there isn’t any activity. That’s the same logic that the Michigan district court used last year when it upheld the mandate, and it poses the same problem identified at the time: What limit, if any, still exists on the Commerce Clause? To borrow George Will’s hypothetical, what part of the Constitution is left to prevent Congress from ordering overweight people to join Weight Watchers? The costs of treating them for weight-related issues are also part of our “novel” insurance problem, so in theory that’s regulable too. There’s no stopping point here.

Here’s the decision. The section on the mandate begins on page 28.
DC Aca Opinion

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ExpressoBold….and the take home:

“Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity … that Congress [cannot] regulate [under the Commerce Clause].

CW on November 8, 2011 at 7:32 PM

The courts are not going to do away with O-Care. They aren’t.

catmman on November 8, 2011 at 5:43 PM

Yep.

I do wonder though if Obama and his lackeys down deep are actually hoping for a defeat. They want a single payer system. Obamacare may still lead there but if defeated the movement will be energized.

CW on November 8, 2011 at 7:34 PM

“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,” he wrote.

The reason “the uninsured inflict a disproportionate harm on the rest of the market” is because Congress passed a law requiring every hospital that receives any type of federal monies (essentially every U.S. hospital) to treat all comers, regardless of ability to pay, regardless of citizenship status, etc. It was Congress that grossly distorted the U.S. health care market in the first place, and now this court is saying that because Congress f*cked up the market so badly, they now have virtually unlimited power to do whatever they please in order to create a “solution” to the problem they created. What a total load of bullsh*t.

AZCoyote on November 8, 2011 at 7:38 PM

Romney’s said repeatedly in public that as President, he’ll defeat OCare.
 
Lourdes on November 8, 2011 at 7:30 PM

 
But what’s Romney’s stance on this? :)

rogerb on November 8, 2011 at 7:39 PM

and now this court is saying that because Congress f*cked up the market so badly, they now have virtually unlimited power to do whatever they please in order to create a “solution” to the problem they created. What a total load of bullsh*t.

AZCoyote on November 8, 2011 at 7:38 PM

Again as I stated earlier. The judges want big gov. No not all of them but most do. Mix them with are GOPers and DEMS and we are screwed. They in general all love big gov.

CW on November 8, 2011 at 7:41 PM

But what’s Romney’s stance on this? :)

rogerb on November 8, 2011 at 7:39 PM

Chuckle x10

CW on November 8, 2011 at 7:41 PM

The reason we got Anthony Kennedy was because Robert Bork was “borked”, to the everlasting shame of Ted Kennedy.

mydh12 on November 8, 2011 at 6:02 PM

You say that like it was a bad outcome. Bork would have been even worse than Kennedy. Bork was and still is strongly anti-individual gun ownership, and very anti-free speech.

AngusMc on November 8, 2011 at 7:45 PM

Well the opinion does follow one trend. Any court that refuses to look beyond the act finds it legal. Courts that look beyond the act to the new power Congress would have, find it illegal.

Zaggs on November 8, 2011 at 7:49 PM

“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,” he wrote. “Moreover, the novelty cuts another way. We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

Bull and bull!

Neither argument means that the founding fathers intended the federal government to run or mandate national health care. Laurence Silberman can try his socialist novelty in some other country. Further Silberman and the courts are obliged to correct an over-zealous Congress.

Rovin on November 8, 2011 at 7:52 PM

Rovin on November 8, 2011 at 7:52 PM

Actually any judge with a lick of sense would know that we should presume LESS power with the federal government.

CW on November 8, 2011 at 7:58 PM

The land is full of fools, from top to bottom.

Schadenfreude on November 8, 2011 at 8:05 PM

So when do states start breaking away. It won’t be Minnesota, no way no how, and I’ll need a new place to live.

Bishop on November 8, 2011 at 8:09 PM

“That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. 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. fn32 [Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59 (1964); Raich, 545 U.S. at 6-7; Wickard, 317 U.S. [111 (1942)] at 128; see also Thomas More, 651 F.3d at 557 (Sutton, J., concurring)] The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59 (1964).”

I say that the D.C. Circuit has thrown down the gauntlet toward SCOTUS- distinguish, or overrule, Heart of Atlanta, Wickard, and Raich, or acknowledge that you, SCOTUS, do not know what the limit is on legislation under the Commerce Clause, if any exists. The upcoming SCOTUS hearing (or hearings) should be really interesting.

Ira on November 8, 2011 at 8:11 PM

But what’s Romney’s stance on this? :)

rogerb on November 8, 2011 at 7:39 PM

It would appear to be a wide one.

I need another drink.

ElectricPhase on November 8, 2011 at 8:12 PM

It doesn’t matter what these courts say.
Each state has a right to tell the Feds to eff off.
It’s called the 10th you damned 50 cowards.
INVOKE the SOB for once.

Badger40 on November 8, 2011 at 8:14 PM

Prime example as to why there so no longer be any LIFETIME appoinments. 20 years or so and hit the road jack.

ColdWarrior57 on November 8, 2011 at 8:15 PM

The courts are not going to do away with O-Care. They aren’t.

The only way to be rid of it will be a full legislative repeal from Congress signed by a President.

catmman on November 8, 2011 at 5:43 PM

However, a conservative President could push things along…

#1 Start out by issuing an Executive Order declaring all Obamacare waivers void since there was no provision for waivers in the law (and that the law applies to everyone equally).

#2 Urge Congress to pass a law mandating firearm ownership for all eligible militia as defined by state constitutions or face individual fines of $5,000/yr… citing the Obamacare mandate as precedent for individual mandates, and the 2nd Amendment for gun ownership as a right and militia training as a need.

#3 Urge Congress to pass a law rescinding Obamacare, which would invalidate #1 and #2.

You would have Democrats crossing the aisle to vote for the rescinding of Obamacare.

It’s a shame we probably won’t have a conservative President any time soon… even if the Republicans do win!

P.S. If you’re wondering why I mentioned state constitutions in #2… for example, the Ohio Constitution defines the state militia as…

9.01 All citizens, residents of this state, being seventeen years of age, and under the age of sixty-seven years, shall be subject to enrollment in the militia and the performance of military duty, in such manner, not incompatible with the Constitution and laws of the United States, as may be prescribed by law.

dominigan on November 8, 2011 at 8:17 PM

ColdWarrior did you vote on Issue 1 in Ohio?

<blockquote>The Judicial Office Age Amendment will appear on the November 8, 2011 general election ballot in the state of Ohio as a legislatively-referred constitutional amendment.
The measure would raise the age of those occupying judicial office from 70 to 76. The measure was debated on during 2011 state legislative session. The measure was sent to the ballot before the end of that year’s session.[1]

CW on November 8, 2011 at 8:20 PM

If the Government can mandate that every citizen must purchase something, I’m looking forward to an ascendant Republican majority in Congress to work with a new Republican President to mandate that every citizen own a Bible, a gun and a copy of the Constitution. Those failing to follow this mandate will be heavily fined.

Red State State of Mind on November 8, 2011 at 8:22 PM

OK, I just got home from work and didn’t read the comments above me. Sue me, or charge me with sexual harrassment.

Red State State of Mind on November 8, 2011 at 8:24 PM

Part of this seems to clearly rest on the whole concept of precedence. He is, in my opinion, actually too conservative in that respect.

This, though:

We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.

Presume that acts of Congress are constitutional? Are you kidding me??? I don’t know that the founders would have gone so far as to claim the exact opposite in their time–i.e., that we should presume acts of Congress are unconstitutional, until proven otherwise–but I would certainly be willing to lay that as a foundational principal today.

What an insane default position. Given the absolutely crap that goes on in Congress these days, I simply don’t see how he can operate that way.

nukemhill on November 8, 2011 at 8:24 PM

First- Reagan fathered Ronny Jr; he can’t get them all right.

Second, regarding:

But he also argued that Congress was in its right to seek a novel solution to a novel problem. “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,” he wrote.

Obviously I disagree, but this argument supposed that the congressional act was solution oriented when we’ve subsequently observed that that couldn’t be further from the truth! The mandate was billed as crucial to bend the cost curve downward, yet all data indicates that hasn’t happened, nor will it happen. And the administration so proud of this landmark legislation with its must-have mandate, has systematically relieved most prominent supporters from the mandate’s provisions. This decision makes no sense based on the actions on the ground- this is a decision based upon nothing but theoreticals.

BKeyser on November 8, 2011 at 8:29 PM

SCOTUS is going to uphold the mandate.

They are going to take the tack that the law was passed by the Citizens representatives (Congress) and signed lawfully by the directly elected President. So if the citizens elect a Congress and the Congress passes a law banning breathing and the President signs it then it’s law. The citizens recourse and voice is through the ballot box (the Constitutional method).

Sorry, America………….welcome to Obamacare Death Panels if you’re over 45 or handicapped or the unborn.

Cass Sunstein and our Progressive overlords are already working putting the framework in place, the final touches ready to give America a BIG….

)))))))))HUG(((((((((

PappyD61 on November 8, 2011 at 8:29 PM

What an insane default position. Given the absolutely crap that goes on in Congress these days, I simply don’t see how he can operate that way.

nukemhill on November 8, 2011 at 8:24 PM

These guys whether they be judges or congressmen buy into the power of big gov. It consumes them…or most of them.

CW on November 8, 2011 at 8:30 PM

So when do states start breaking away. It won’t be Minnesota, no way no how, and I’ll need a new place to live.

Bishop on November 8, 2011 at 8:09 PM

If Emperor Obama truly loves all 57 States, he’ll set us free. And if we don’t come back, then it was never meant to be.

Red State State of Mind on November 8, 2011 at 8:30 PM

EOTWAWKI

chemman on November 8, 2011 at 8:43 PM

As I’ve said, if this thing is ruled constitutional, it’s time for a Constitutional Convention. This mandate, if ruled constitutional, gives congress the ability to pass any law and have it upheld by the commerce clause. The Democrats have proven themselves capabable of ruling, rather than governing, and they passed this legislation with little or no input from the 46% of the representatives of the people who didn’t vote for Obama.

It has always been a rule of thumb, that legislation that affects the entire country should be passed in a bi-partisan manner. The Democrats broke that rule of thumb and they did it so brazenly that the law doesn’t deserve to be called constitutional. If it is, there is only one way to preclude that happening again and that’s a constitutional convention.

bflat879 on November 8, 2011 at 8:46 PM

Um, where to start?

But hey – no worries; electing Romney will fix this, right? I mean, he says he’ll “repeal and replace” it – which I guess doesn’t really mean it will go away, just that he’ll tweak it a bit into something even ‘better’! Between he and the Republicans acquiescing to $300billion in new taxes (which the Dems of course say isn’t enough), we’re going to be in great shape!

Yay, us. If 2012 elections don’t fix it, there’s always 2016. Or 2018, maybe. Or maybe… After all, look around – nothing’s so bad that we have to worry about whether the country will still be here by then or not, right?

Midas on November 8, 2011 at 8:54 PM

Seems to me that we need to start tightening up the definition of “conservative judicial icon”. And when someone issues POS statist opinions like this, they need to be denounced, overridden if possible, the budgets of their circuits whacked and impeach ‘em if we can. I am really, really sick of people like this.

DocinPA on November 8, 2011 at 9:00 PM

1. Repeal through congress, signed by a president
2. Constitutional convention, or
3. Violence

I am convinced one of the three will happen.

Vashta.Nerada on November 8, 2011 at 6:08 PM

#3 is the only way to dissuade them from trying again. But I would be ok with a CC first and then violence.

rgranger on November 8, 2011 at 9:10 PM

Pitchforks.

Saltysam on November 8, 2011 at 9:16 PM

Using Silberman’s logic then, the Government could pass a law that confiscates everyone’s wealth to pay off the national debt and he would agree that it is constitutional because it’s a novel approach to solving a problem. Silberman’s a Haaaaavad law grad, for the life of me I don’t understand the stupidity coming from the Ivy League.

TulsAmerican on November 8, 2011 at 9:55 PM

The very argument that affirms congressional authority is the same logic that precludes state regulation.

The ‘commerce clause’ was expressly intended to prevent states from imposing conditions on trade between the states, yet in insurance, and California’s regulation of motor vehicles the very kind of impediments to interstate trade appear, and are uncontested.

Skandia Recluse on November 8, 2011 at 9:58 PM

Pitchforks.

Saltysam on November 8, 2011 at 9:16 PM

And barrels of hot tar & lots of feathers.

Badger40 on November 8, 2011 at 9:58 PM

Well that’s it. If SCOTUS uses the same argument, it’s over for the Constitution of this USA. There is nothing, absolutely nothing that the government will be prohibited from doing, regulating, or controlling. Nothing will be deemed free of being affected by, or affecting interstate commerce. Nothing.

Pitchforks and torches folks, pitchforks and torches. This is not what the founders bequeathed to us, this is not what the blood of patriots fought for, this is not freedom.

AZfederalist on November 8, 2011 at 10:30 PM

Ladies and gentleman, It would appear the tree of liberty is wilting.

Fighton03 on November 8, 2011 at 10:40 PM

can there be any doubt now…….. if your vote changed anything….they would make it illegal……. this is a shinning example that the COURT is just another part of the system…… and the system will be protected at all costs.

Kids..ya only need to remember one thing in this life….. The United States is the most powerful Government on the face of the Earth…. It gets exactly what it wants……

Crappy schools…. don’t ya think they could fix them if they wanted…

Think about it…

roflmao

donabernathy on November 9, 2011 at 3:10 AM

This sets the stage for the Supreme Court (err Justice Kennedy) to possibly roll back decades of commerce clause over-reach, or roll over and render citizens into subjects. It would be nice to have more principled conservative on the court instead of Sotomayor and Kagan. Elections do matter.

not-Obama 2012!

exdeadhead on November 9, 2011 at 7:05 AM

Um, not-Romney either.

exdeadhead on November 9, 2011 at 7:06 AM

Mark Levin condemned Silberman’s decision last night (roll tape @75:00min mark).

Levin counters that Silberman “absolutely missed… not just the bullseye but the whole damn target” in interpreting Wickard v. Filburn.

Levin’s Landmark Legal Foundation has committed to contest this decision to the Supreme Court.

Terp Mole on November 9, 2011 at 8:49 AM

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.”

This statement is simply flabbergasting. Read it carefully: it literally turns the concept of Constitutionally-encapsulated limits on federal power on it’s head…stating, in effect, that the rights of the individual may be superseded by a simple majority vote in Congress as long their purpose is to “forge national solutions to national problems”.

Are there homeless people in your community? Yes? Well, the fact that they don’t have a home makes it more difficult for them to find work, which means that they are more likely to depend on public assistance. Providing that public assistance affects national economic activity. Voila! Congress can pass a law stating that if you have an empty bedroom in your house, you can be compelled to provide shelter to a homeless person!

“National problem” solved!

Many homeowners are spending a large part of their income on keeping up with their house payments. If those payments were lower, they’d be able to spend more money in the broader economy, thus helping with the national economic problems in the country. Voila! Congress can pass a law compelling mortgage lenders to write down all loans to 20% of the owner’s income!

“National problem” solved!

Like guns? Too bad! Guns are used in crimes all across the nation, thus constituting a “national problem”. Voila! Congress can pass a law that simply bans gun manufacturing.

“National problem” solved!

I don’t care who Silberman is – he’s so off-base here as to be simply ridiculous. It’s so asinine as to almost leave one wondering whether or not there’s some blackmail going on here – a la some sort of compromising, Sandusky-like material being held over his head. This “reasoning” will never stand up in front of SCOTUS.

But if it inexplicably does somehow stand, they will have set this country on a path towards only one of two end-game possibilities: Soviet-style tyranny or open civil insurrection. And considering that upholding ObamaCare would destroy any slim chance of fiscal restraint on behalf of the federal govt…thus guaranteeing a full, Weimer-like economic meltdown…we will come to that end-game in our lifetimes.

rvastar on November 9, 2011 at 11:58 AM

A sound argument against lifetime appointments.

Pablo Snooze on November 9, 2011 at 12:07 PM

How in the world does someone like Silberman come up with the following idiotic definition of regulating interstate commerce?!?

See if you can follow this from Page 29 of the decision.

We look first to the text of the Constitution. Article I, § 8,cl. 3, states: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (emphasis added). At the time the Constitution was fashioned, to “regulate” meant, as it does now,“[t]o adjust by rule or method,” as well as “[t]o direct.”27
To “direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.”28
In other words, to “regulate” can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term “commerce” limited to only existing commerce. There is therefore no textual support for appellants’ argument. So we turn to Supreme Court decisions.

So let me see if I have this straight. The clear language in the Constitution of “regulate Commerce … among the several States” ACTUALLY means, BY DEFINITION, that non-existing commerce can be required, and doesn’t have to be “in relation to an interstate market”?! Say huh?

I swear, up is actually down and 2+2 actually equals 5 when these guys decide it does. The PLAIN meaning of the Constitution is that Congress can set rules for Commerce to take place across state lines. There is NOTHING in that plain text of the Constitution that could legitimately be interpreted that to regulate means Congress can compel Commerce to take place, and especially Commerce that doesn’t even cross state lines.

Yes, regulation can involve to direct; to order; to command. But that can only be related to the activity being regulated! For example, the activity may be ordered to be done a certain way, or a new set of paperwork may need to start being kept and reported about the activity. But regulation has to be related to an activity. Regulation is NOT mandating a completely new, unrelated activity take place. Mandating that cars be parked within defined parking areas is a regulation. Ordering someone to buy a car is not a regulation.

The plain text OBVIOUSLY restricts Congress power in this phrase to Commerce “among the several States”. And “commerce” does not necessarily mean existing commerce, but only in the respect that rules could be setup for expected or possible future commerce. But even there, this text of the Constitution is specific to expected or possible future commerce “among the several States”.

Silberman simply waves off the plain text of the Constitution and moves on to Supreme Court precedent. How do idiots like this get on the court? And I don’t know a ton about Silberman, but is this really one of the best our side has to offer?

Tell me where I am wrong.

willamettevalley on November 9, 2011 at 3:18 PM

Freedom and liberty stabbed in the back.

gwelf on November 10, 2011 at 7:34 AM

Do Federal judges get shown some secret clause in the Constituton that states: “just kidding – nothing limits in a meaningful way what the Federal government can do to it’s citizens”?

gwelf on November 10, 2011 at 7:38 AM

It’s good to know that the Commerce Clause essentially reads: All citizens are serfs.

gwelf on November 10, 2011 at 7:57 AM

How in the world does someone like Silberman come up with the following idiotic definition of regulating interstate commerce?!?

That my friend would be why libertarians are always suspicious of so called conservatives… conservatives are not rock solid when it comes to defending individual rights and freedoms… they are susceptible to align themselves with liberals on many of the core issues of big government.. A liberal judge could not have defended the Obamacare mandate better – in fact if you thought that only a liberal thinks that the Federal Government has unfettered power over the individual, Justice Silberman demonstrates flat out that that is NOT the case.

You can argue that most conservatives would contradict Silberman… but then again ALL libertarians would.. and from what i read from this article Silberman is considered influential.

Land of the Free ?? not really… how the mighty have fallen.

nagee76 on November 13, 2011 at 10:55 AM

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