Ultraconservative DC Circuit Judge Upholds Obamacare

Ken AshfordConstitution, Health CareLeave a Comment

Opinion here.  Very well reasoned, and does a great job shooting down the legal arguments of those who think the individual mandate is unconstitutional.

UPDATE:  Obviously, other circuit courts have adjudicated on the merits of Obamacare and this will all go to the U.S. Supreme Court.  

But this means that three appellate courts have now considered the health care law on the merits. The 6th Circuit Court of Appeals ruled in June that the Affordable Care Act is perfectly constitutional, rejecting conservative arguments out of hand. In August, the 11th Circuit Court of Appeals reached the opposite conclusion.

This particular case did more than "break the tie".  It's a major defeat for the right, in part because of the court's role — the D.C. Circuit is generally considered the most important federal bench below the U.S. Supreme Court — and in part because of the judges who heard the case are conservative.  

Judge Laurence Silberman, who wrote the ruling upholding Obamacare and the individual mandate, is a Reagan appointee who has a well-deserved reputation for being one of the most right-wing jurists on the federal appeals bench.  He's been described by some court observers as "a biased judge with a hair-trigger temper and a thinly veiled partisan tint to his opinions."  Read more about him here.

And yet he upheld Obamacare, shooting down the argument from the right that the Constitution's Commerce Clause does not give Congress the power to regulate people for their inactivity.  Steve Benen sums it up:

As for the activity/inactivity question, the ruling addresses the debate exactly as the left has been all along. Yes, there may be folks who don't want to buy insurance, and they would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and — here's the kicker – still get care. As you may have noticed, for quite a while, it's been one of the right's favorite arguments: the uninsured can always just go the emergency room and receive treatment, whether they have insurance or not.

Of course, when the uninsured get this care, and can't pay for it, the costs are passed on to the rest of us — it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient. As a consequence, those who would choose not to get coverage have a significant impact on the larger health care system, which is precisely why the notion of a mandate enjoyed broad, bipartisan support up until late 2009. There was never any doubt as to its constitutionality.