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”

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  2. My complaint is that a polite deference contrasts with the idea of “separation of powers” and co-equal branches.
    It is “inactivist” judges.

    While “wait and see” makes sense in some cases, to determine whether in practice the infringement be substantial, you can later hear stare (sorry) decisis, as with Lafayette Park.

    I don’t mind the decision. I don’t like the deference.

  3. Rafflaw, I think people are following a fallacy when they regard social security and medical “coverage” as motivated by “compassion and altruism.” Neither of these activities is either compassionate or altruistic in my opinion; both are practical, responsible, and undeniable. First off, if you presume (as some people inexplicably find themselves capable of doing) that nobody is responsible for anybody else (except their legally-mandated dependent family members) then neither is anybody else responsible for THEM. If a person who becomes sick and is denied medical care then becomes “dangerous to himself and others” as a result of his condition (unmedicated and untreated) and he manages to commit a crime against one of the folks who believes that he is not responsible for the criminal’s medical care, who is responsible to prosecute that criminally insane person? Am I required to hand over part of my salary to pay for a prosecutor who will take care of the problem on behalf of the guy who is not responsible for seeing to it that I can live a decent life? I don’t think I should be, do you? And once we have a large class of workers who, for lack of medical care, may be carrying MRSA into all our factories, restaurants, stores and public places, can the antibiotic-resistant germs be told only to infect the poor, powerless and uninsured? I don’t think so. And if the old have no income and cannot work and cannot get medical care, what would persuade them not to commit open, knowing, active crimes in order to get “three hots and a cot” and the care and feeding of the county jail in cold weather? What kind of society do we want, exactly?

    I for one want the kind of society where it doesn’t take compassion and altruism to motivate people to realize that they must either accept the idea that everyone gets certain basic rights or everyone will suffer, and some quite horribly, and there’s no predicting who. For instance, picture a 64-year-old woman with no medical coverage and no social security who has, for one reason or another, a real grudge and who cannot figure out how to get either treatment or her next meal. Do you know what exact incentive this woman would have to refrain from antisocial conduct? Hmmmmmm…

  4. The courts defer not only to policy decisions of Congress, but to lawyers for self-important departments in the Executive, like the Park Service: the courts abridge the right to peaceably assemble outside of the White House, routinely.

    Demonstrations are broken up, and thousands arrested, for violating 36CFR7.96(g): hey you – move along. Somebody might want to see the fountain. I’m cancelling your permit. You are all arrested.
    If you would just do what we tell you, we wouldn’t have to get this way.

  5. martin,
    Judge Silberman stated that Congress must be free to forge national solutions to national problems. (paraphrase) and Judge Kavanaugh stated that mandates might become a blueprint for policy and courts should be careful before interfering. (paraphrase)

  6. The principle that “the court should not interfere with policy decisions passed by Congress” strikes me as a statement of polite deference.
    Do they say why this principle applies in this case?

  7. Raff, they will not stop trying. After almost eighty years they are still trying to do away with Social Security. Those who do not need health care insurance or old age benefits will never give up trying to take it away from those who do. Greed, to them, is a virtue. Compassion and altruism is a foreign concept.

  8. raff:

    ” The opinion was written by conservative Judge Laurence Silberman.”

    I remember there was some discussion about this judge,with a headline which was similar to”No liberal here”

    And it put a slight muzzle on some critics of the decision.

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