The Silberman Decision

Yet another Affordable Care Act appeals court ruling yesterday, with the DC Circuit ruling in favor of the individual mandate — and conservative, GOP-appointed Judge Laurence Silberman writing the opinion in favor. It’s a 2-1 decision, with one conservative dissent.

The dissent, however, was over jurisdiction, not the merits of the case. As was a good part of Judge Silberman’s opinion. In the substantive portion, however, Silberman ruled pretty broadly, as I read it, that the activity/inactivity distinction that ACA opponents have been pushing is constitutionally bogus, and that basically the individual mandate is well within the mainstream of Commerce Clause rulings over the last 75 years. The key paragraph as I read it:

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.

I think Jonathan Cohn gets it right:

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.

He links back to an argument he’s been making for a while, on which I agree. Here’s how I put it:

I continue to think that it’s tied in to a larger question, which is whether the conservatives on the Court really want to disrupt the basic governing arrangements that Americans have made since the 1930s, as opposed to just tinkering around the edges, or as opposed to just tilting the playing field within those arrangements. If not — or if they just don’t have the votes for it at this point — then I suspect they’ll find it hard to knock out the ACA, or even just the individual mandate, without threatening the larger upheaval. I don’t see how they could do another “ignore this case” decision, although I suppose I didn’t expect an “ignore this case” decision ten years ago when they tried it, so you never know.

What’s interesting so far in the lower court rulings, none of which is going to determine how the Supremes rule, is that at least so far that logic seems to be holding. There doesn’t appear to be any rational way to square the circle and strike down ACA without also disrupting all sorts of other things.

On the other hand, the Chief Justice is a clever guy, so we’ll just have to wait and see.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.