Leading Conservative Federal Appeals Judge Says Case Against Health Reform Has No Basis In ‘The Text of the Constitution’

By Ian Millhiser/Think Progress




When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh — the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.

And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion that absolutely obliterates any suggestion that the ACA is not constitutional:

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickard doesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. [...]

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

When a federal judge tells you that your argument has no basis in the text of the Constitution, it is a good sign you don’t belong in court. When he compares your argument to claims that the federal ban on whites-only lunch counters are unconstitutional, it’s an even better sign of how deeply radical your argument has become. When that judge is Judge Laurence Silberman, a man who has stood at the pinnacle of conservative judicial thinking for decades, it is about as good a sign as you can hope for that the Supreme Court is not going to like your argument either.