Posted on 11/08/2011 5:42:31 PM PST by SeekAndFind
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
Starting to wonder if someone got to him; it’s the Chicago Way.
Thank the War on Drugs and the New Deal.
Laurence Silberman has been assimilated by the Washington DC cocktail borg.
The Supreme Court is ultimately going to have to decide if Obamacare is unconstitutional. We can’t count on that happening so we’ll have to work hard to get a Republican President and Congress elected to get it repealed in toto. We’ve been placed on notice.
This ruling was very bad news indeed. Silberman ruling that Obamacare is a-okay suggests that there won’t be 5 justices on the Supreme Court to overturn it. There are only 4 conservatives and a moderate anyway, and Silberman is pretty influential. This tells me that, at minimum, Kennedy will probably side with the liberals since he now has a normally stalwart conservative he can model his opinion around.
What do they have on him?
Since they refuse to uphold the Constitution they must be impeached, imprisoned as traitors and stripped of any pensions accrued.
That would be nice, but it ain't going to happen.
Maybe that’s why Obama took the breaks off and wanted this thing completed before the election.
Damn!
This is NOT good. This opinion could give Justice Kennedy the perfect ‘out’ when it reaches the Supreme Court.
At first I was not worried about this decision. Now? Well, it simply says we have reached the imperative moment in our Republic to elect a Conservative President who will undo this mandate. It is likely our last chance (at least in my lifetime).
Wow.
After this guys bench, where does the case go?
If Congress can force citizens to purchase services involuntarily as a mere condition of citizenship, then the Constitution’s enumeration of powers and reservation of all rights not so enumerated to the people are both rendered meaningless. We might as well live in China.
How old is this scumbag Silberman?
Judges need to be reminded that they can hang lifeless next to the shirts.
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.” - Thomas Jefferson to William Stephens Smith, 1787.
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