A swing and a miss
Judge’s ruling draws reaction from both sides
Under the looming prospect that the Supreme Court will render the final verdict on President Barack Obama’s healthcare reform law, a majority led by an influential conservative judge last week upheld the law’s insurance mandate while a state electorate rejected it.
Senior Judge Laurence Silberman, writing for a 2-1 majority in the U.S. Court of Appeals for the District of Columbia, upheld the Patient Protection and Affordable Care Act’s controversial requirement that nearly all Americans purchase insurance or pay a tax penalty in 2014. The 31-page opinion in Seven-sky v. Holder came Nov. 8, two days before the Supreme Court met to discuss whether to grant oral arguments on the reform law during the spring 2012 term.
Silberman’s ruling disappointed many conservatives and buoyed supporters of the law because of the judge’s well-known credentials on the right, including his 2007 opinion striking down Washington, D.C.’S gun ban, which led to the Supreme Court’s first-ever finding that the Second Amendment protects a private individual’s right to bear arms.
Reform-law proponents said Silberman’s unqualified finding that Congress had the constitutional power to force Americans to buy insurance could influence two potential conservative swing votes on the Supreme Court: justices Antonin Scalia and Anthony Kennedy, who sided with a majority upholding Congress’ power to regulate activity that only indirectly affected interstate commerce in a 2005 decision involving medical marijuana.
“A single individual need not even be engaged in any economic activity—i.e. not participating in any local or interstate market—so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated,” Silberman wrote, quoting language directly from Scalia’s own concurring opinion in the marijuana case.
Opponents of the reform law, meanwhile, said the Seven-sky ruling only widened the split in the circuits and made it more likely the Supreme Court would take up the issue. In June, the 6th Circuit Court of Appeals in Cincinnati upheld the individual mandate, while the 11th Circuit Court of Appeals in Atlanta struck it down two months later.
Silberman also wrote that the sense that requiring Americans to buy a good or services is “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.” Voters in Ohio last week provided a new snapshot of the politics of the issue.