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.