TNR : DC court upholds Obamacare : "[The individual mandate] 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"

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From The New Republic : Famous Super Conservative Judges of the D.C. Circuit Court uphold Obamacare with fundamental conservative tenets and an “originalist” interpretation of the Constitution

The New Republic
How Conservative Judges Just Provided the Most Authoritative Legal Defense of Obamacare
By Bruce Brown
November 12, 2011


How Conservative Judges Just Provided the Most Authoritative Legal Defense of Obamacare


Some excerpts :

The D.C. Circuit opinion upholding the Act rests on two fundamental conservative tenets: an “originalist” interpretation of the Constitution and a restrained view of judicial power. Writing for the majority, Judge Laurence Silberman begins his substantive analysis by quoting the text of the Commerce Clause: “Congress shall have Power … To regulate commerce … among the several states.” The legal issue in the case is whether the words “regulate commerce” extend to the regulation of economic inactivity—to force people to take the action of purchasing health insurance. Employing a classically originalist approach to interpreting the Constitution, Judge Silberman does not consider what the words “regulate commerce” might mean today, but instead references Samuel Johnson’s 1773 dictionary to determine what those words meant to those who ratified the Constitution in 1789. Johnson defined “regulate” to mean “to prescribe certain measures,” or “to adjust by rule or method.” To “regulate,” Judge Silberman reasoned, “can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.” Judge Silberman concludes: “There is therefore no textual support for appellants’ argument.” To a true conservative, and to most everyone else, a constitutional argument that has no “textual support” in the language of the Constitution is an argument that will lose almost every time.

By grounding its defense of the individual mandate in the text of the Constitution itself, the D.C. Circuit’s opinion is far more difficult to attack than other opinions and commentaries that rely upon vulnerable Supreme Court decisions—such as the famous Wikard v. Filburn—which many conservatives believe should (and might be) overruled by the Roberts Court.

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The second fundamental conservative principle upon which Judge Silberman’s decision is grounded is that the judicial power to strike down laws passed by a democratic majority should be sparingly invoked. It would be an “activist” decision to strike down this law which was, after all, passed by a majority of democratically elected senators and representatives, and signed by a president whose electoral platform featured health care reform. In this opinion, Judge Silberman is joined by Judge Kavanaugh, another conservative judge who dissented on jurisdictional grounds but nonetheless wrote: “The elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care, vital policy objectives. This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it.” As Judge Kavanaugh explained, the same argument that would strike down the individual mandate might also doom other reforms—conservative reforms—“on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help,” such as, for example, the partial privatization of social security.

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As Judge Silberman reasoned in his opinion: “[The individual mandate] 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 … . 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.”

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