Thursday, November 10, 2011

Obamacare Upheld by DC Court of Appeals

The US Court of Appeals in the District of Columbia has upheld the constitutionality of the Affordable Care Act, otherwise known as Obamacare.  The 2-1 ruling was on the case of Seven-Sky vs Holder, which overturned a decision from a federal court in Atlanta last August that found the law unconstitutional due to the requirement under that law that requires citizens to buy health insurance, called the ‘individual mandate’.  This is the third such case on the mandate, with one decision in Florida finding the entire law unconstitutional. 

Judge Laurence Silberman (a Reagan appointee) wrote that the mandate is an acceptable power that Congress can impose, under what is increasingly understood to be the omnipotent power to ‘regulate commerce’, coupled with the need to pass ‘laws which shall be necessary and proper’ for the execution of congressional powers, both from Article I, Section 8 of the Constitution.

This is a finding that is certain to raise the hackles of conservatives not only for its finding, but for the rationale thereof.  The media reports I have seen have basically described the case as involving a few plaintiffs that challenged the law on religious grounds.  That is true but not accurate, certainly not complete.

Silberman’s reasoning is that, while the government could not identify any basis in constitutional law that would establish such a sweeping power of Congress to compel individuals to buy into a health insurance system (essentially ‘regulating inactivity’ of those who would choose not to), neither can anyone establish that it cannot.  The relevant language:

The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause. [p26]
Further on, Silberman dismisses this obstacle:
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. [p33 - emphasis mine]
As if this were not bad enough, Silberman cites a case that should pump up the blood pressure of any conservative:  Wickard vs Filburn (1942).  To let him explain:

We think the closest Supreme Court precedent to our case is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer [Filburn] ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock.  Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market.  The Supreme Court unanimously rejected this claim.  It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within Congress’ commerce power.
Wickard vs Filburn was the Kelo vs City of New London of its day, but the effects of both are still very real.  While the question of the individual mandate has yet to be ultimately resolved by the Supreme Court, this decision points out again how necessary it is for a Republican president to be in place to appoint judges more in line with constitutional principles, and to have a sufficient number of Republican senators who can sustain his appointments.

Update:  The Supreme Court announced that it will hear arguments next March about Obamacare and the individual mandate, meaning a decision sometime in late June, in this AP dispatch which oddly keeps linking the story to the Bush vs Gore decision of 2000.

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