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

Hotair ^ | 11/08/2011 | Allahpundit

[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

[TheOldLady]

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[MamaTexan]

The Constitution specifically refers to them as Person. It never refers to them as property.

A person HELD to Service and Labour cannot, by the very description, be anything other than a slave. Whether permanently or by the means of indentured servitude.

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He was regarded and owned in every State in the Union as property merely, and as such was not and could not be a party or an actor, much less a peer in any compact or form of government established by the States or the United States.

Which is correct. [Nice attempt to change the debate with the Roe vs Wade comment, BTW]

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To establish an uniform Rule of Naturalization

You can't be serious. First you say citizen isn't defined, then try to defend it with a clause that doesn't even contain the words citizen OR define?

LOL!

Making a uniform rule for the States to follow concerning turning foreigner into citizens is TOTALLY different than trying to wave a magic wand and saying 'poof!' You're a citizen.

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The court declares the Northwest Ordinance and Missouri Compromise unconstitutional

They were. Madison himself said the Northwest Ordinance was based on the fact the federal government could not exert a greater authority over the territories than it exerted over the States.

With respect to what has taken place in the N. W. Territory, it may be observed, that the ordinance giving its distinctive character on the Subject of Slaveholding proceeded from the old Congress, acting, with the best intentions, but under a charter which contains no shadow of the authority exercised. And it remains to be decided how far the States formed within that Territory & admitted into the Union, are on a different footing from its other members, as to their legislative sovereignty.
James Madison to Robert Walsh 27 Nov. 1819

It would follow that if the first were unconstitutional, so would the second.

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and famously said that Jefferson's idea (in the United States Declaration of Independence) that "all men are created equal" was not a "self-evident truth" but instead "is nothing more to me than a self-evident lie."

Um. Because he's entitled to his own opinion?

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But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted;

Also true. Otherwise they would not have made the distinction between 'persons' in the manner that they did.

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Lincoln likewise stated:

I really don't give a rat's pattootee what Lincoln said.

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If you want to hang out with Pettit, Taney and the rest of the Pro-Slavery crowd

What IS it with you people that can't tell the difference between someone saying slavery is a good thing and someone stating the FACT that slavery was legal before we were even a country and the way it was eradicated was not only totally constitutional, but the consequential actions is exactly WHY the government owns us?

Are you really that incapable of thinking for yourself?

[MamaTexan]

not only totally constitutional

not only totally UNconstitutional