Health law supporters ecstatic after victory in DC appeals court

Supporters of President Obama’s healthcare reform law were ecstatic Tuesday after a conservative federal judge said the law’s individual mandate is constitutional.

Judge Laurence Silberman wrote the 2-1 opinion in which the D.C. Circuit Court of Appeals upheld the healthcare law’s requirement that almost all Americans buy insurance.

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Silberman was appointed to the bench by former President Reagan and honored with the Presidential Medal of Freedom by former President George W. Bush. His rulings have routinely infuriated liberals, but Obama’s supporters were eager to praise the judge on Tuesday.

“I think this is the best day that the Affordable Care Act has had in court so far,” said Neera Tanden, president of the Center for American Progress.

Legally, Silberman’s ruling isn’t likely to have a major impact. The Supreme Court is already set to consider several cases about the mandate during a private conference later this week, and the justices are widely expected to take up a lawsuit filed by 26 states and the National Federation of Independent Business.

But Tuesday’s decision improves the law’s record in federal appeals courts. Two circuits have now upheld the mandate; one ruled against it, and one declined to reach a decision, citing procedural issues.

“Its standing and its legal grounding is the strongest it’s ever been after this ruling,” Tanden told reporters.

The fact that Silberman wrote the decision also provided a major symbolic win to the healthcare law’s supporters, who have long argued that upholding the mandate shouldn’t be a stretch for some of the Supreme Court’s conservative justices. 

He is the second conservative judge to back the mandate. Judge Jeffrey Sutton, a former clerk for Supreme Court Justice Antonin Scalia, upheld the requirement in a separate case.

“What we see now is the leading lights in the conservative legal movement are saying no, this is a bridge too far,” said Ian Millhiser, a legal analyst at CAP.

Silberman’s decision is a strong endorsement of the Obama administration’s arguments for the mandate. Notably, he agreed that upholding the insurance mandate would not necessarily give the federal government sweeping new powers in other areas.

Critics of the mandate say it has no clear limits — if Congress can make people buy insurance, it can require just about anything, they say. Silberman said it’s “troubling” that the federal government hasn’t clearly articulated a limit to its commerce clause power, but ultimately accepted the argument that healthcare is a special application.

“It suffices for this case to recognize, as noted earlier, that 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,” Silberman wrote.

He also rejected critics’ contention that the insurance mandate requires people to perform an economic activity. They argue that Congress can regulate commerce but can’t force people to participate in it. Going without insurance, critics say, is inactivity, and Congress can only regulate economic activity. 

The Justice Department says everyone will likely need healthcare services at some point, and the mandate simply governs how and whether those services are paid for.

Again, Silberman said the text of the Constitution’s commerce clause is on the Obama administration’s side.

“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,” he wrote. “Nor was the term ‘commerce’ limited to only existing commerce.”

Conservatives’ reaction to Silberman’s ruling was somewhat muted. They noted that the Supreme Court will have the final say on the mandate and said they still expect it to strike the policy.

“Judge Silberman’s … decision rests on his claim that Congress has an unlimited power to address whatever it deems to be a national problem,” Georgetown University law Professor Randy Barnett said. “Fortunately, his will not be the last word on these constitutional challenges.”

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The dissenting judge in the D.C. Circuit did not say the mandate is unconstitutional, but rather that the court is barred from reaching a decision on its constitutionality. Judge Brett Kavanaugh said the federal Anti-Injunction Act, which bars people from suing over a tax that hasn’t yet taken effect, should have prevented the circuit court from reaching a decision.

The Supreme Court will likely have to deal with the Anti-Injunction Act somehow, even though both sides of the debate want the justices to avoid a procedural decision and get to the core question of whether the mandate is constitutional.


—This story was first posted at 12:06 p.m. and has been updated.