Tuesday, November 8, 2011

The Silberman Decision

Yet another ACA appeals court ruling today, with the DC Circuit ruling in favor of the individual mandate -- and conservative, GOP-appointed Judge Laurence Silberman writing the opinion in favor. It's a 2-1 decision, with one conservative dissent.

The dissent, however, was over jurisdiction, not the merits of the case. As was a good part of Judge Silberman's opinion. In the substantive portion, however, Silberman ruled pretty broadly, as I read it, that the activity/inactivity distinction that ACA opponents have been pushing is constitutionally bogus, and that basically the individual mandate is well within the mainstream of Commerce Clause rulings over the last 75 years. The key paragraph as I read it:
We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.
I think Jonathan Cohn gets it right:
While it's possible to faithfully read the Constitution as prohibiting the requirement that everybody pay for health care, doing so would require junking a bunch of important Supreme Court precedents.
He links back to an argument he's been making for a while, on which I agree. Here's how I put it:
I continue to think that it's tied in to a larger question, which is whether the conservatives on the Court really want to disrupt the basic governing arrangements that Americans have made since the 1930s, as opposed to just tinkering around the edges, or as opposed to just tilting the playing field within those arrangements. If not -- or if they just don't have the votes for it at this point -- then I suspect they'll find it hard to knock out the ACA, or even just the individual mandate, without threatening the larger upheaval. I don't see how they could do another "ignore this case" decision, although I suppose I didn't expect an "ignore this case" decision ten years ago when they tried it, so you never know.
What's interesting so far in the lower court rulings, none of which is going to determine how the Supremes rule, is that at least so far that logic seems to be holding. There doesn't appear to be any rational way to square the circle and strike down ACA without also disrupting all sorts of other things.

On the other hand, the Chief Justice is a clever guy, so we'll just have to wait and see.


  1. Is it possible to declare a moratorium on references to Bush v. Gore? The supposed "ignore this case" statement of the Court was re: the Equal Protection portion of the decision, which portion was supported by 7 of the 9 justices. Moreover, the exact statement -- "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities" -- isn't far from pretty standard "our holding is a narrow one" language that court employ all the time.

    Overall, most "Bush v. Gore" references that I have seen over the last 10 years have shed more heat than light, and tend to simply reflect the author's political leanings, rather than any sort of edifying analysis. Frankly, I expect more from this blog.

  2. Even the dissent hints pretty clearly he would find the ACA constitutional if he were to reach the merits:

    "This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now. Courts naturally should be very careful before interfering with the elected Branches’ determination to update how the National Government provides such assistance.

  3. On the other hand, the Chief Justice is a clever guy, so we'll just have to wait and see.

    Don't worry. He'll find something -- it's his job. It's why he was put on the bench. In a pinch, Necessitas non legem habet may be old law -- or lack-of-law -- but it's good law.

  4. I was born when God wanted me born and I'll die when he wants me dead, and in the meantime I'm going to spend my money on video games and weed; I don't need your medical-industrial-complex money-sucking-machine BS and you can't make me buy into it. How about that?

  5. Anon 4:27:

    That's OK. You'll just have to use some of your weed money to pay a tax penalty.

  6. DXM,

    I don't know. I wouldn't be surprised either way, but I think at this minute if I had to guess, I'd lean (slightly) towards them upholding ACA.

    Part of it is that I'm not at all convinced that the GOP really cares very much if the individual mandate is struck down -- there are advantages and disadvantages either way, I'd think. And I don't believe that Kennedy is ready to for a full renunciation of the New Deal (and I'm also not all that convinced that very many GOP pols and GOP-aligned interest groups want that, either).


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