Conservative Take on Obamacare

Respectfully submitted by Lawrence Rafferty(rafflaw)-Guest Blogger

Ever since the legal challenges to the Affordable Care Act, or as it is better known, Obamacare began, the pundits have kept a scoreboard on which courts have approved of the individual mandate to buy insurance, and which courts have disapproved of the constitutionality of the mandate.  The latest Appellate Court to come down with its decision was the Court of Appeals for the District of Columbia.  It may not surprise anyone that the court came down in favor of the legislation approving the individual mandate, but it may surprise you just who comprised that appellate panel. The opinion was written by conservative Judge Laurence Silberman.  Judge Silberman was appointed to the Appellate court by Pres. Ronald Reagan and of the three judges on the panel, two were appointed by Republican presidents and one was appointed by Pres. Jimmy Carter.

“The Court of Appeals for the District of Columbia Circuit released a decision in which all three judges on the case rejected a constitutional challenge to the individual mandate, which requires individuals to carry health insurance or pay a tax penalty. One of the three judges, George W. Bush appointee Brett Kavanaugh, finessed opining on the merits; he would have barred hearing the case until after the mandate takes effect in 2014, citing an Internal Revenue Code requirement that the legality of taxes cannot be challenged in court except by taxpayers disputing an existing collection effort. But Senior Judge Laurence Silberman, a Reagan appointee writing for himself and Carter appointee Harry Edwards, directly confronted the challenge to the individual mandate, and rejected it outright. That’s a formidable statement from a conservative icon—and a warning shot to the justices of the Supreme Court.”  Slate

Judge Silberman details that the original meaning of the Constitution backs up the decision of the court and he also approaches the question of the individual mandate head on.   “Similarly, Silberman dispatches the nostrum endlessly repeated in political and media arenas as well as the courts: that the individual mandate represents an unprecedented and radical breach of individual autonomy. “Certainly,” he acknowledges, citing examples from court precedent, it “is an encroachment of 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.” Silberman concludes by noting that the right to be free from regulation must yield to “the imperative that Congress be free to forge national solutions to national problems.” ‘ Slate While Judge Silberman may not be the only Conservative jurist to decide in favor of the individual mandate portion of the Affordable Care Act, he certainly may be the most influential.

While I wished that Obamacare had included a Public Option, I am an unabashed believer in Obamacare and its individual mandate.   It is refreshing to see Conservative judges who agree that the Court cannot challenge Congress’ power to legislate on every issue just because it is politically expedient to do so. Maybe this decision and the other decisions and dissents by conservative jurists will teach us all, myself included, a lesson that we have to remove politics from the judicial process. Sixth Circuit  Judge Silberman’s colleague on the Court of Appeals for the District of Columbia, Judge Brett Kavanaugh, was appointed to the court by Pres. George W. Bush and he opined that the court should not decide the case until the mandate becomes effective in 2014 on procedural grounds.

However, Judge Kavanaugh also stated that the court should not interfere with policy decisions passed by Congress.   ‘ “Privatized social services, Kavanaugh wrote, “combined with mandatory-purchase requirements might become a blueprint” for policy, so “courts should be very careful before interfering.” ‘  Kavanaugh    Should Courts get involved in policy  decisions of Congress?  Do you think that Judge Silberman and his colleagues decided the case correctly and if not, what should they have decided?  We have discussed the individual mandate in the past, but does this District of Columbia Court of Appeals decision change your thinking on the constitutionality of the individual mandate?  Do we have too much politics involved in judicial decisions and if so, how do we remove it from play?

These questions are just a few that come to mind after reading the decision.  I hope that the Supreme Court can put this issue to bed so that the nation can proceed with improving its Health care system.  I also look forward to your questions and ideas concerning this decision and the Affordable Care Act.


The Affordable Care Act can be found here.   The full decision by the Court of Appeals of the District of Columbia can be found here.

21 thoughts on “Conservative Take on Obamacare”


    The decision in NFIB v Sebelius 132 s.ct 256 validated the mandate and shared responsibility payment of the PPACA. The PPACA was the premier initiative of the Obama Administration, and an enormous component of his legacy. Writing for the majority, Chief Justice Roberts validated the penalty or shared responsibility payment as a valid exercise of the taxing power. The predicted 5-4 vote defied the reigning taxonomy, although the dissents went back to the anticipated classifications. In the dissent of Justice Ginsburg, she underlined her liberal progressiveness through an apperception that went straight to the 1930’s and the progressive era of the Court.

    “The provision of healthcare is today a concern of national dimension, just as the provision of Old Age and Survivors benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefit to retired workers . . . Beyond question, Congress could have adapted a similar scheme . . . Instead to preserve a central role for private insurers . . . according to Chief Justice the Commerce Clause makes scant sense and is stunningly retrogressive. The Chief Justices “CRABBED” reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’s efforts to regulate the national economy of those who labor to sustain it. . . It is a reading that should not have staying power.

    Ginsburg seems to scold Roberts for professing a heresy of Progressive liberal thought, but she specifically ties this to a specific reference to the 1930’s and the FDR Supreme Court duel, for example US v Butler US297, which negated an Agricultural Act employing the Tenth Amendment.

    As the early 1930’s reveal, in the Fireside Chats, FDR declared his preference to not amending the Constitution through Article V, instead he believed nominations to the Court were a better idea for the “Constitutions is what the Court says it is”. As Ginsburg noted thwarting of FDR’s initiatives did occur, and his response was to threaten to pack the Court, the threat appeared to have been heard at the Court, and the resulting attitude was named a “switch in time that saved nine.” To liken these two eras surely struck home, although the erudition of Chief Justice Roberts assures he was as aware of comparison as anyone if not more so far it had a personal impact.

    Harvard Law is the alma mater of both the President and the Chief Justice, and the liberal leaning of the University is certainly not a secret. The Chief Justice and the entire Court reads and is impacted by the Law Reviews not only of Harvard but many others as well. The academic papers by Law professors and Constitutional historians are read as well, recalling the “Green House” effect is easy, for most of us have it within our memory and experience. Hasn’t Whiggish history declared Progressive ideology on the Court a teleological result? Hasn’t the resistance to new ideas always been labeled misguided and anachronistic. Chief Justice Roberts is more aware than most of history and its reaction to the hegemony of the time, which today at Harvard and academia is heavily invested in liberalism.

    How would history view the nullification of the PPACA, to witness the favored initiative of Redemptive Candidate, now vested, declared ultra vires? Obama’s iconic status suggest a harsh treatment might be expected, would Roberts ponder that response before voting to nullify a portion of the Obama legacy by a Court bearing his name and finalized by his own pen? We know the Chief Justice can remember the Court being singled out for criticism by the President. Is it that the Chief Justice hears Footsteps from the Fireside, a comparison fatal to expecting anything but a derision to his legacy? Can we then ask Justice Roberts in total candor, regarding legacies, “was Sebelius a switch in time that saved thine?

Comments are closed.