For the second time, a federal judge with undoubted credentials as a conservative jurist has concluded that Congress had ample authority to enact the new federal health care law, giving the Obama Administration a new and significant victory just as the Supreme Court is about to take up the constitutional controversy.  Senior U.S. Circuit Judge Laurence H. Silberman of the D.C. Circuit Court, who is among the most conservative of all federal judges, expressed some misgivings on Tuesday about the breadth of the key part of the new law, but nevertheless took only 13 pages of brisk argument to declare that provision to be constitutional.

Perhaps the most important consideration for the ruling, the three-judge Circuit panel said, was “to presume that acts of Congress are constitutional.”  The challengers, it found,” have not made a clear showing to the contrary.”

Another judge who voted to uphold the law, Circuit Judge Jeffrey S. Sutton of the Sixth Circuit Court, also enjoys high regard as a conservative jurist, though he is somewhat closer to the center in his constitutional views than Judge Silberman.   With the conservative bloc dominant now on the Supreme Court, the views of those two judges may well have an influence on the ultimate fate of the core dispute over the new health care: the constitutionality of its mandate that virtually all adult Americans obtain health insurance by the year 2014, or pay the federal government a penalty.

The Supreme Court is scheduled to begin considering the constitutional challenges to the new law, including its insurance mandate and the attached penalty, when it examines the first pending appeals at its private Conference  this Thursday morning.

Judge Silberman’s opinion in the case of Seven-Sky v. Holder (Circuit docket 11-5047) was joined by another senior Circuit Judge, Harry T. Edwards, who is among the federal judiciary’s most liberal members.  A third member of the Circuit panel, Judge Brett M. Kavanaugh, a conservative, dissented from Tuesday’s decision, arguing that constitutional challenges to the insurance-purchase mandate are barred by the federal Anti-Injunction Act on the theory that the mandate and the penalty are part of the federal tax system.  The panel’s three opinions can be found here.

The Circuit majority said that the “closest precedent” guiding its views was the Supreme Court’s famous 1942 decision in Wickard v. Filburn, upholding Congress’s power to pass a law that went so far that it barred a single wheat farmer from growing the crop on his own land in order to help feed his family and his livestock, with no intention of selling it in the wheat market.  That precedent, Judge Silberman wrote, went far to erode the distinction between commerce among the states and local commerce.

Wickard,” the opinion said, “comes very close to authorizing a mandate similar to” the one in the health care law.  The effect of the federal law at issue in that case, the opinion said, was to force any farmer into the wheat market — in the same way that the new insurance mandate forces some private individuals into the health coverage market even if they don’t want to be there.   Congress, the panel commented, “is merely imposing the [insurance] mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”

The new mandate, according to the opinion, is, indeed, “novel,” but it said that so is the argument of those challenging it.

Judge Silberman wrote that the panel felt “some discomfort” that government lawyers had not offered “any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.”  But it quickly added that the panel itself could not identify any such limits, “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.  This 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.”

It is enough, for this case, the panel said, “to recognize…that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.”

To the challengers’ argument that the new mandate was a limit on individuals’ liberty to make their own economic choices, the panel majority said that sounded like a Due Process Clause argument, and then added, “But it has no foundation in the Commerce Clause.”

While the panel said that a direct order by Congress for most Americans to buy health insurance “seems an intrusive exercise of legislative authority,” it said that the appearance explains why Congress had not used the authority previously.   That, it added, is “a political judgment rather than a recognition of constitutional limitations.”  While it encroaches on individual liberty, it commented, 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 describe as the only effective palliative for excruciating pain [a reference to marijuana], or that a farmer cannot grow enough wheat to support his own family.”

Congress, it summed up, must be free “to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.”

Circuit Judge Edwards, while supporting the panel opinion, wrote a brief separate opinion defending congressional authority, but stressing that it does have constitutional limits.

Judge Kavanaugh, in a 65-page dissent, refused to take any position on the constitutionality of the insurance mandate, arguing that the Anti-Injunction Act deprives federal courts of any jurisdiction to hear challenges to it.   He relied also on the constitutional principle that courts should not decide constitutional questions too early or unnecessarily, and argued that the principle “applies with special force here…because if we do not decide the constitutional issue now, we may never have to decide it.”   The case could disappear within the next four years, if Congress chose to fix any supposed constitutional defects in the mandate.

Just a “a minor tweak” of tax law, he said, would “definitely establish the law’s constitutionality under” the Constitution’s Taxing Clause, and thus make it unnecessary to rule on whether Congress had exceeded its Commerce Clause power in enacting the mandate.  The word fix he spelled out would make the mandate and its penalty a form of regulatory tax, and that would be valid.

The courts, Judge Kavanaugh summed up, should confront the constitutionality of the new law “only if and when we need to,” so he would “leave these momentous constitutional issues for another day — a day that may never come.”

The Silberman-Edwards majority concluded that the federal courts do have jurisdiction to rule on the challenges, because they concluded that the mandate and the penalty are not really tax provisions, so the Anti-Injunction Act does not apply.

 

 

 

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, Big boost for health care, SCOTUSblog (Nov. 8, 2011, 6:58 PM), http://www.scotusblog.com/2011/11/big-boost-for-health-care/