Skip to comments.Brutal: D.C. Circuit upholds ObamaCare mandate — in opinion authored by Reagan appointee
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 justicesincluding Chief Justice John Robertspreviously 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 Congresss Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.
As for the appellants 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 Courts Commerce Clause cases have used the word activity to describe behavior that was either regarded as within or without Congresss 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 questionpresented hereof whether inactivity can also be regulated.
Silberman ceded that the ACAs mandate marks an unprecedented new federal power and professed a discomfort with the Governments 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.
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).
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.
I have zero faith in the USSC. And this decision is a farce since it never addresses the idea of compelling a citizen to purchase a private product from a private company!
I am self employed and can’t afford higher insurance costs!
I swear, I wish a nuclear bomb would hit DC lately and wipe out all these traitors.
“4 conservatives and a moderate”
2 conservatives, 2 moderates and 1 liberal.
Kennedy is the lone liberal, the other 4 are far beyond liberal.
Silberman accurately follows SC precedence on the Commerce Clause. There is no clear limit.
Are we ready for battle, my FRiend?
It gets more and more likely that that’s the direction, FRiend.
What’s your measured opinion?
You can bet the farm that if obama took the breaks off the fix was in.
On his radio show today, Mark Levin spoke highly of the judge and was stunned by the decision here.
judge sounds like he punted in deference to Congress.
I was reading Judge Rehnquist’s book and he says that you don’t want
SC to overturn laws passed by Congress as unconstitutional.
Sort of a tie goes to the runner rule like in baseball. You defer to Congress.
I think this is what this judge did. But there is no limiting factor, so the SC
has to clear it up.
I’m afraid now that SC will BS their way by saying can only do it for “unique”
market like health insurance.
It is good that public opinion is against the law. And Ohio voted tonight.
the SC does read the public opinion.
That’s what I’m thinking.
Need to find something that the Dems will have to impeach his ass for.
Are you quoting Roger Taney?
Taney, whose health had never been good, spent his final years in worsening health, near poverty, and despised by both North and South. Since the Merryman ruling, he was all but ignored by Lincoln and his cabinet. Taney lost his Maryland estates to the Civil War and suffered from his poverty:
"All my life I have felt the obligation to pay my debts . . . and my inability to do so at this time is mortifying." He explained that his rent had been raised from $4,000 to $8,000 but that he had been prevented from moving to cheaper quarters due to the failing health of his daughter Ellen, who lived with him. The miserable financial situation was maddening to him. . . . A few months later Taney wrote ". . . about peaceful, bygone days . . . walks in the fresh country air. But my walking days are over."
(Note: Taney's yearly salary was approximately $10,000. In the inflationary Washington, D.C. of this time, the yearly rent for his boardinghouse rooms had jumped from $4,000 to $8,000, with no increase in pay.) On October 13, 1864 the clerk of the Supreme Court announced that "the great and good Chief Justice is no more." He had died at the age of eighty-seven the previous evening, having served for more than twenty-eight years as the fifth Chief Justice of the United States.
President Lincoln made no public statement. Of his cabinet, Lincoln and three members Secretary of State William H. Seward, Attorney General Edward Bates, and Postmaster General William Dennison attended Taney's memorial service in Washington, D.C. Only Bates joined the cortège to Frederick, Maryland for Taney's funeral and burial. Taney, whose wife had pre-deceased him by nearly twenty years, was survived by two daughters: the sickly Ellen, and a second, widowed daughter with a small child; he left a small life insurance policy and a bundle of worthless Virginia bonds.
Taney was punished by abolitionists in the Senate after his death. In early 1865, the House of Representatives passed a bill to appropriate funds for a bust of Taney to be displayed in the Supreme Court. "Now an emancipated country should make a bust to the author of the Dred Scott decision?" exclaimed the indignant Senator Charles Sumner. "If a man has done evil in his life, he must not be complimented in marble." Sumner proposed that a vacant spot, not a bust of Taney, be left in the courtroom "to speak in warning to all who would betray liberty!"
If the Supreme Court fails to kill this monster, all that remains to be decided is when it goes into effect. Because even if a subsequent president and Congress repeal it entirely, the next time the pendulum swings back to the left it'll return.
The Republicans won't repeal it a second time. We'll be lucky if they do it once.
” - - - Need to find something that the Dems will have to impeach his ass for.”
Yep. I agree. Obama has a 50-50 chance of being re-elected, so now is the time to impeach. After 11-2012 it will be to late.
What utter garbage.
If anything we are obliged to presume all acts of Congress to be unconstitutional until proven otherwise, period. Law should be challenged to see if it is up to constitutional muster.
“If Congress can force citizens to purchase services involuntarily as a mere condition of citizenship, then the Constitutions 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.”
+1 right on target.
It sure is. The socialization of risk, the abrogation of responsibility and a 3rd party, 3rd branch, 3rd rate unaccountable bureaucrat (another socialist) FORCING you to pay for this abomination.
Taney's decision was constitutionally sound.
It was the emoting of the populace that caused it to be overturned, and the resulting actions is EXACTLY why we are in the position we are in today.
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions
“daring SCOTUS - in a very tepid and backhanded manner admittedly - to engage on the matter. “
I too get some impression he’s tweaking the SC (perhaps Kennedy himself) to find and state a limit for the Commerce Clause.
The deck is stacked - all of the DC hacks want obamacare.
If you think for one second Boehner / McConnell / et al dont love ObamaCare - you are dead wrong.
This is all a shell game and a con on us.
Maybe in bazaro world.
A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.
"African race"? Where is that mentioned in the Constitution? Nor does the Constitution define citizenship. That task was left to Congress.
The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.
Race is not mentioned in the Constitution.
The clause in the Constitution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States in the treaty of peace. It does not apply to territory acquired by the present Federal Government by treaty or conquest from a foreign nation.
He just pulled this out of thin air.
That statement is true. Slaves were a specie of property that was legally acknowledged over 150 years before the Constitution was even written.
"African race"? Where is that mentioned in the Constitution?
It is no, but slaves are.
Was there a point to your statement?
Nor does the Constitution define citizenship.
Wrong. The fact there were 2 types of citizens was acknowledged several times.
§ 1218. The inhabitants enjoy all their civil, religious, and political rights. They live substantially under the same laws, as at the time of the cession, such changes only having been made, as have been devised, and sought by themselves. They are not indeed citizens of any state, entitled to the privileges of such; but they are citizens of the United States. They have no immediate representatives in congress.
Joseph Story, Commentaries on the Constitution
"The term resident and citizen of the United States is distinguished from a Citizen of one of the several states, in that the former is a special class of citizen created by Congress."
U.S. v. Anthony 24 Fed. 829 (1873)
"There are, then, under our republican form of government, two classes of citizens, one of the United States and one of the state".
Gardina v. Board of Registrars of Jefferson County, 160 Ala. 155; 48 So. 788 (1909)
That task was left to Congress.
The only power of definition Congress possess is contained in Article 1, Section 8;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
Maybe in bazaro world.
BTW, Hon.....it's BIZZARRO world.
If your going to try to insult someone, you might at least make an effort to spell it right.
No, they are not. Reread your Constitution, the word slave is nowhere to be found. There are reference to a other Persons, and Person held to Service or Labour (Not free persons or Indians). The Constitution specifically refers to them as Person. It never refers to them as property.
This is in contrast to Dred Scott v. Sanford:
That in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. 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.
Of course the other prominent case where "Persons" are declared "Not Persons" is Rowe v. Wade.
The only power of definition Congress possess is contained in Article 1, Section 8; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
except where it says: To establish an uniform Rule of Naturalization
These are the clauses in the Constitution that use the word citizen. Nowhere is it defined.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States,
No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States
a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Article III section 2 and the XI Amendment use the word citizen. Nowhere is there a definition.
Furthermore the decision states:
Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.
So even though the Constitution states in Article IV:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The court declares the Northwest Ordinance and Missouri Compromise unconstitutional.
The decision then debases the Declaration of Independence:
It then proceeds to say: 'We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.' The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. 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;
If this was true, why did Senator John Pettit, during the Senate debate on the Kansas-Nebraska Act of 1854, argue in favor of expanding slavery to Kansas, 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."
Lincoln likewise stated:
All honor to Jefferson--to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.
My original response to the thread was to highlight the fact that when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce [us] under absolute Despotism strife and violence will soon follow. The Stamp Act started it in the 18th century, Dred Scott in the 19th. It is still true that Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable.
If you want to hang out with Pettit, Taney and the rest of the Pro-Slavery crowd, there over here: http://www.democraticunderground.com/
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.
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]
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?
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.
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.
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?
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.
Lincoln likewise stated:
I really don't give a rat's pattootee what Lincoln said.
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?
not only totally UNconstitutional