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Saturday, December 3, 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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