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Rep. Michele Bachmann (R-MN) speaks at a news conference where Republican members of the House displayed petitions Americans have signed demanding the repeal of healthcare legislation Jan. 18, 2011 in Washington, DC.
Rep. Michele Bachmann (R-MN) speaks at a news conference where Republican members of the House displayed petitions Americans have signed demanding the repeal of healthcare legislation Jan. 18, 2011 in Washington, DC. Win McNamee/Getty Images
Read Another Opinion On Obama's Health Care Plan
Jonathan Cohn is a senior editor at The New Republic.
The D.C. Circuit Court of Appeals just issued a decision in the lawsuit against the Affordable Care Act. It looks like a big win for the administration—and, more importantly, for health care reform.
I'll have more to say on this later, after I've read the decision more carefully. But I'll share two quick observations.
The first is the author of the majority opinion: Judge Laurence Silberman, a Reagan appointee and conservative judge. He's now the second well-known, well-regarded conservative jurist at the Circuit level to uphold the law. Judge Jeffrey Sutton, a Bush appointee on the 6th Circuit, was the first. And while one Democratic appointee has voted to strike down the law, that judge, Frank Hull of the 11th Circuit, is not a strong liberal.
The second is that Silberman's opinion is pretty strong. Here one key excerpt:
"The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants' argument. No Supreme Court case has ever held or implied that Congress's Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce. ... To be sure, a number of the Supreme Court's Commerce Clause cases have used the word 'activity' to describe behavior that was either regarded as within or without Congress's authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether 'inactivity' can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation."
In effect, the judges are dismissing the distinction between "activity" and "inactivity" as meaningless. That distinction, of course, is the foundation of the lawsuit. The relevant issue, Silberman goes on to say, is whether the mandate affects commerce that crosses state lines. It clearly does.
Elsewhere, Silberman cites precedents giving Congress broad powers over interstate commerce, including decisions that upheld parts of the New Deal and civil rights laws:
"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."
This is precisely the argument many of us have been making: While it's possible to faithfully read the Constitution as prohibiting the requirement that everybody pay for health care, doing so would require junking a bunch of important Supreme Court precedents.
Again, I've only skimmed the decision, so perhaps there's more nuance—and darker omens—than I'm detecting. I'll update this item later. But for now, this seems like a good omen, at least for those of us who believe the Affordable Care Act is a good law.
Update: Here's Elizabeth Wydra, chief counsel at the progressive Constitutional Accountability Center, who (needless to say) knows a lot more about law and the courts than I do:
"On the eve of the Supreme Court's decision whether to review the constitutionality of health care reform legislation, the nation's second most important court has dealt a devastating blow to the challengers of the Act, delivered by one of the country's foremost conservative jurists"