While the highly politicized issue of legal challenges to Democrats’ Affordable Care Act broke along party lines at the District level, Appellate courts have offered a more unpredictable and telling series of rulings on the measure. Tuesday’s 2-1 split decision from the D.C. Circuit Court of Appeals upholding the constitutionality of the individual health insurance mandate was no exception, and it provided another piece of evidence that the Obama Administration will head into next year’s Supreme Court battle well armed with a diversity of opinions to make their case. It is the third Appellate court to side with the White House on the controversial law, and its majority opinion, written by respected conservative jurist Larry Silberman, is perhaps the most compelling defense of the ACA’s constitutionality to date.
With the exception of the Fourth Circuit, all federal courts ruling on the law thus far have found that the individual mandate’s penalty does not constitute a tax and therefore is not subject to the Anti-Injunction Act, which dictates that taxes cannot face legal challenges before they are levied. Because the individual mandate and the penalty for disregarding it will not be instituted until 2014, the federal courts have had to weigh whether or not they have jurisdiction to decide the matter before then. It was in fact this issue that split the D.C. Circuit, not the higher-profile matter of the individual mandate’s constitutionality under the Commerce Clause. In his dissenting opinion, George W. Bush appointee Brett Kavanaugh made an argument similar to that of the Fourth Circuit, which held that any consideration of the law is premature.
“For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions,” Kavanuagh wrote. “But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute.”
Kavanaugh’s dissent may encourage the Supreme Court to take a second look at the question of jurisdiction, but it doesn’t change near-consensus on the issue. The much more important element of Tuesday’s ruling was the majority opinion written by Reagan-appointed senior judge Larry Silberman. With Carter appointee Harry Edwards concurring, Silberman picked apart the appellant’s constitutional challenge to the individual mandate at length, citing the Constitution, court precedent and the nature of health care itself. At one point during oral arguments, Silberman was overheard flatly telling the law’s opponents that “I don’t see anything in the Constitution that supports you.” His opinion was every bit as biting.
On the issue of whether the mandate’s unprecedented compulsion of market activity constituted congressional overreach, Silberman was categorical. “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 Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”
As for the appellant’s 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 Court’s Commerce Clause cases have used the word ‘activity’ to describe behavior that was either regarded as within or without Congress’s 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 question–presented here–of whether ‘inactivity’ can also be regulated.”
Silberman ceded that the ACA’s mandate marks an unprecedented new federal power and professed a “discomfort with the Government’s 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.”
Silberman’s opinion is far from final–the Supreme Court will have its say next year. But as it careens toward the High Court with favorable opinions from conservative jurists like Silberman and Jeffrey Sutton at its back, the Obama Administration is surely feeling confident that its signature legislative achievement will survive.