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Tuesday, October 25, 2016

A 2-1 ruling by the U.S. Court of Appeals for the Washington, D.C. circuit upholding the constitutionality of the Affordable Care Act, Barack Obama’s overhaul of the American health care system that extends coverage to nearly all Americans, gave a hint of the rationale that the Supreme Court — and even conservative Chief Justice John Roberts — could use to avoid striking down the administration’s signature law in the middle of an election season.

The majority opinion, written by a conservative Ronald Reagan appointee, Judge Laurence Silberman, concurred with the government’s claim that it has the power under the Commerce Clause of the Constitution to regulate economic activity that includes a requirement to purchase health insurance, and is the latest in a series of rulings responding to suits by Republicans angry at what they see as government overreach.

“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,” Silberman wrote.

While repealing “Obamacare” has become an article of faith among Republicans, it was unclear whether or not the increasingly right-leaning judiciary was willing to take a sharply narrow view of the Congress’ regulatory power and actively strike down any laws that expanded the welfare state. In some ways, the fact that a conservative legend issued the ruling was more important than the opinion’s substance.

“I think Silberman’s vote was very significant,” said Ian Millhiser, a legal policy analyst with the Center for American Progress. “This is a man with 30 years of history as a very strong conservative activist. He reversed [Iran-Contra Reagan official] Oliver North’s felony conviction. He wrote the lower court opinion invalidating the D.C. handgun opinion. He received the presidential medal of freedom from George W. Bush. This is someone who, throughout his career, when there was doubt in a constitutional question, he resolved the doubt in favor of conservatives. And what he’s saying is there isn’t any doubt here; the law is unambiguous that this is constitutional.”

The Supreme Court is likely to announce within the coming weeks that it will hear a challenge to the Affordable Care Act, a process that was sped up by the Obama Administration’s request for a writ of certiorari, or formal acceptance of a case for review by the high court. A ruling would probably be issued sometime next spring or summer, in the thick of the presidential campaign — an epic showdown that looks like it could be anti-climactic if Tuesday’s decisions are any indication.

Noah Feldman, a Harvard law professor and legal historian, pointed out that while the dissenting judge in the Appeals case, Brett Kavanaugh, is a conservative George W. Bush appointee, he didn’t strike down the Affordable Care Act. Instead, he argued the Court had no jurisdiction because the tax (or penalty) for not purchasing insurance had not yet kicked in, appealing to the Anti-injunction Act, which says citizens can only challenge taxes after they have paid them. He effectively outlined a way for even the most rock-ribbed conservative justice to delay the decision on the bill until after the presidential election.

“What Judge Kavanaugh is doing is sending a message to Kennedy saying, ‘You don’t have to decide the case. You can defer this thing.'” Feldman said. “The Obama administration [by pushing for a Supreme Court review early] was clever,” because Republicans have to choose between getting rid of a law they despise as soon as possible, and keeping it on the books long enough to star in attack ads.

This dynamic — where the president publicly spars with the judiciary on major policy matters — hasn’t really been witnessed since The New Deal. “This is the first time since the 1930s that you’ve had an extended clash between a progressive president and a narrow conservative majority on the Supreme Court,” said Jeff Shesol, an historian who wrote about FDR’s “court-packing” plan in his 2010 book “Supreme Power.”

“What the ruling today says, and what other rulings upholding the Affordable Care Act have suggested, is that it is within the power of Congress to deal in this way with this national problem. The national government has the ability to deal with an obviously national problem. Which is the fundamental question that gripped in the country in the 1930s.”

On the other hand, the comparison between Obama — who has disappointed much of the left with the relatively cautious nature of his agenda and a kid-gloves approach to negotiating with congressional Republicans — and FDR doesn’t quite work.

Whereas FDR had enormous personal popularity behind him, which helped turn public sentiment sharply against the high court as it began to strike down New Deal legislation, Obama’s poor approval numbers — and the even more tepid feelings of voters toward the health care law — mean the justices (and moderate “swing vote” Anthony Kennedy in particular) need not fear a populist uprising; they can make as deeply ideological a decision as they like.

“After Bush v. Gore, the most overtly political decision in the Court’s history, the Court suffered zero dip in the public’s mind,” Feldman said. “If Kennedy wants to strike down the health care law, he’s not going to worry the Supreme Court’s legitimacy is in question.”

Then again, a fight on purely intellectual grounds could help supporters of Obama’s (nearly) universal health care scheme.

“Judge Silberman is someone who is intellectually very respected in conservative circles,” said Millhiser. “In order for this law to be struck down, opponents have to run the table with the five conservatives on the Supreme Court. His thinking is very predictive. He’s a leading conservative thinker. He’s interacted professionally and socially with the conservative justices; they think alike.”

Though the Supreme Court sometimes throws out appellate rulings, Tuesday’s may be critical for “providing the conservative justices of the Supreme Court with an intellectual pathway to upholding the act, should they choose to take it,” added Shesol.

The Silberman vote, like Kavanaugh’s dissent, will be noted in particular by Justice Anthony Kennedy, the wild card in a court that is otherwise split between reliable liberal and consistent conservative votes on most issues.

“Silberman is a signal to Kennedy. He’s telling Kennedy what he thinks the opinion should be. He gives Kennedy some cover. Kennedy, if he’s going to uphold it, would like to cite Silberman, a conservative,” as is fitting with his centrist reputation.

This ruling is not the first time a conservative legal stalwart has upheld Barack Obama’s health care law. Back in June, George W. Bush appointee Jeffrey Sutton — who clerked for Antonin Scalia and serves on the 6th Circuit Court of Appeals in Cincinatti — also said the Affordable Care Act was patently constitutional.

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Copyright 2011 The National Memo
  • thaibonnie

    national solution to a national problem…good for ALL Americans 🙂

  • Herb Batson

    Ruling was a bunch of CRAP. Obama forced it in and No one in the United Statesd wants the thing!!!!!

  • brightcloudy

    Certainly if the Supreme Court of the United States of America expects it’s citizens to respect it then they should uphold this bill and let it become law, Health Care is not a privilege it is a right for every citizen of this country to receive excellent health care, take out the fraud and corruption and there will be no problem!!!!

  • LogicObserv123

    Let’s see, at this point in the commentary, there are 3 of us who “want the thing”. An early observation is that you are not only wrong, but you seem to have a warped view of reality and your place in the world. It has some excellent provisions that are already in effect, but losing the Public Option was pathetic, and the 2450 pages of gobbledegook protecting the interests of insurers, we could have done without. 2013 Medicare for EVERYBODY…

  • DAlnB

    It is amazing how some people can make such broad assumptions and attempt to include “no one” or “every one” or what ever the daily line might be. I have yet to be asked so until I am and I agree then the terms are bogus, inaccurate and invalid! Neither political party speaks for me; I have the right to my opinion as do millions of others who may or may not be assumed to be a part of the “everyone” or “no one” assumptions.

    Those who feel the Health Law is illegal should be given the option to opt-out. But when the time comes they need the benefit of the law they also be able to opt-in; everyone makes a mistake from time-to-time and time will show they made a mistake.

    I have already had benefit of the new law and those who have are ready to support it. The Republicans have spent millions of dollars trying to convince people the law is bad. It is estimated that less than 1 person in 2500 has read ANY portion of the law and have drawn their conclusions from hear say! Due to the piecemeal implementation of the law very few people have actually experienced the benefits; as more people get access to the various benefits they will agree America needed this law and it is good for all!

  • Dianrib

    What we need is Medicare for all Let folks buy in Powerful Insurance CO deny,drop, raise rates, charge way too much and have a 25 % admin cost
    Medicare admin fee is 3 -4 % Saves money and works US is not anywhere near
    # 1 in health care unless you are wealthy .
    Pre existing illness ? You’re out of luck

  • Rene123

    To all of you who destroy the world, here is a tip we r here to complement one another, sorry to say that some folks don’t have and the ones that do need to do there part…When I c someone hungry I feed them when there r lost I guide them if they need change I give it, and guess what I’m poor….Do your part and stop complaining because remember what goes up will come down….I am for the Health Care from President Obama….He is a leader…..

  • j_berry50

    I don’t accept insurance in my office and I am doing fine!I charge a reasonable fee and have dropped out of the insurance game!!!

  • DaleCuthbrtson

    i predicted the summer of discontent
    my latest prediction 5 months ago is for the summer of destruction we now see
    the beginnings of this.

    and if this country does not change the way it does business i have predicted the
    death of the republic in 2.5 yrs

    WAKE UP AMERICA………………………………!


  • Dennis Scott

    I am so sick and tired of the Commerce Clause of the Constitution & to be used as a government loophole clause to do what ever they want to us …. People Wake Up!!!!!!

  • imquiltercb

    The Commerce Clause of the Constitution was put there becasue our founding fathers realized there were times something affecting the entire country had to be regulated. Obama care did not go far enough. We do need medical insurance for everyone, and we need it simplified. We also need a way to keep medical costs in check. Expanding Medicare for everyone or setting up some other type of single payer system would give the PEOPLE the power to deal with the insurance and medical industries to lowers costs. It might even encourage the AMA to revoke the license to practice for those doctors found guilty of malpractice. Doctors’ costs are driven by malpractice insurance costs which are, in turn, driven by the fact that most of the cases of malpractice are generated by a small minority of repeat offenders. Costs for everyone will go down if these few doctors are dealt with summarily on the first offense.

    Yes people, wake up and realize we ALL need to get medical costs under control and get our medical system to be as effective or better than any other industrialized nation. Let individual insurance companies sell excess policies to the wealthy, but make sure all of our citizens have the care they need.

  • dpaano

    Herb Batson: Please do NOT speak for me or for EVERYONE in America. You do NOT know who does or does not want Obamacare!! I’ve heard from MANY people who are thrilled with this. Most taxpayers are tired of having their taxpayer money used to pay for ER services for people who either don’t have insurance, can’t afford to purchase insurance, or are too lazy to buy insurance. I’d rather these people have the ability to get even basic insurance…..going into an ER for minor illnesses (because they can’t afford to go to a doctor’s office) is expensive, and it costs both you AND I our taxpayer money to cover it. I think a great many people in the United States are tired of that. Maybe you don’t seem to care how your money is spent, but I know, for myself, I certainly do! And…I speak only for myself.

  • Totenkatz

    Brightcloudy writes “Health Care is not a privilege it is a right for every citizen of this country to receive excellent health care, take out the fraud and corruption and there will be no problem!!!!”

    Health Care is not a right! No one is entitled to health care especially if paid for by the American Tax payer (ME!). The Federal Government cannot tell me to buy health insurance or be fined. The Federal Government cannot tell me where or from whom to buy my health insurance.

    Oh and the Supreme Court will hear this and will rule that this law (Affordable Care Act) is unconstitutional no matter what conservative Ronald Reagan appointee, Judge Laurence Silberman says.

  • Paul Neymeyr

    It would seem to any reasonable prudent person that when two of our founding principles are “LIFE” and the “pursuit of happiness” the logical conclusion is that health care is a right. With the number of children, adults, and seniors, that are suffering and/or dying needlessly because they are poor and can’t afford either the hospital bill or insurance, our county has not fulfilled OUR duty.

  • David Starkey

    Yes, Virginia, God DOES still perform miracles.

  • faultroy

    I agree with the author. Ultimately the SCOTUS will uphold the Commerce Clause citation. However, as in the case of Emininent Domain in which the Scotus ruled that States do have vast powers to take over personal property, States immediately set laws to prohibit them from doing so–on a state level. And, I think this same scenario will play out with Obamacare. Regardless as to who wins the election, one thing is certain, the real focus is on whether the Dems will be able to retain control of the Senate. Even if Obama is reelected, Repubs will both water down Obamacare and make it more more States-Rights focused. That is States will have much greater control and much more flexibility than is currently envisioned. Contrary to what you are reading in the traditional press, many Repubs are actually happy that the law was passed, and would rather not have to do something like this all over again. The reality is that if the USA is to compete on a global level, it must do something to rein in the dramatic rise in health care costs. To not do so, is to put the USA in a noncompetitive postion on the world market. To give you an idea how serious healthcare is from a business perspective, General Motors was spending an average of $8,000 per vehicle to both purchase healthcare for its current employees and to continue payments for their retirees. There is no way that a business like GM can compete on the world market with that kind of a negative Albatross hanging around their necks while international car companies are not saddled with this expense. So regardless as to what Repubs say, business states that they need some form of a nationalizes healthcare law–along with the monetary savings such a law brings–to be competitive in a world market. The way to do this is to keep the shell of Obamacare, but gut it to make it much more fair and give both doctors,patients and businesses the opportunity to tailor the law to suit what makes most sense to both the individual,the doctor, the hospital and the business. There is no question, Obamacare is both an abomination and mess–but to completely dismantle it is short sighted.

  • WillerB

    It has been said that “no one want in the United States wants the thing” with a chorus of jeers contesting that assertion.

    Let it be said that there has been a historical problem with health care in the United States and the POTUS sought a solution. The first steps have been feeble since the Conservatives will give no ground nor broker for legislation that would be a compromise, a dirty nasty word for them to contemplate. The legislation may not be perfect but then our nation over the centuries has found that the Constitution wasn’t exactly adequate. It is a fact that the original Constitution was immediately amended with the Bill of Rights. It follows that the Affordable Care Act can be amended as flaws are observed and improvements recognized.

    As @Dianrib notes insurance companies have had a significant overhead cost, or front end load when compared to Medicare. But it is to be noted that medicare has its problems, also shared by insurance companies, of gross fraud. “Obamacare” addresses this issue by focusing on the profits of insurance companies who will benefit as they and the government ferret out fraud and waste.

    We need both a robust private health care system and a steady reliable government, and the sooner Conservatives jump back on the wagon of working for a better nation instead of trying to “drown it in a bathtub” the better off we will be.

  • nutleyite

    It is my opinion that the health care system in this country is critically

    bad. Those of us who live in poverty that we do not chose in life or have

    preexisting illness in which many insurance companies don’t want to insure you are

    left to co-exist meaning that many individuals might not seek the medical

    attention required to keep them alive as well as taken medication for serious

    health problems like heart disease, Asthma, Diabetes and many other serious

    health problems. We should be ashamed of our selves for allowing such an existence

    to occur. Mexico a very poor country does not charge as much as this country

    does for doctor visits and prescriptions. And for the record people are not lazy

    to purchase insurance they simply don’t have the money. People on welfare at times

    abuse the ER visits; however instead of promoting welfare try educating these

    people. Usually they are single parents who are not receiving money from their

    spouse like myself and are struggling to make ends meet. I chose education to

    better my self more women need to step up to the plate and make better choices

    as difficult as it may be. However talk about wasting tax payers money some men

    are utilizing time in court for non payment for their children. Health care is

    needed for all individuals not some who are wealthy but everyone.

  • RobertA.Marquardt

    I hear some people, mostly republicans say, “We need to get rid of Obamacare!” I am curious, what will they put in its place so that people have health care? NOTHING! DOES ANYONE FEEL THAT DOING NOTHING IS ACCEPTABLE?