An Unlikely Source Affirms the Constitutionality of Health Care Reform

Yesterday, the D.C. Circuit Court of Appeals became the third of the four federal appeals courts to consider the issue to turn back a constitutional challenge to the individual responsibility provision of the Affordable Care Act (ACA). Congress has the power to require individuals to obtain health insurance (with subsidies for low- and moderate-income individuals), the court held, as part of its authority under the Commerce Clause of the Constitution to regulate commercial markets, including the insurance industry. Those challenging the individual responsibility provision have argued that Congress nevertheless cannot require individuals to participate in the insurance market if they choose not to. But, as we argued in a brief in the case and the D.C. Circuit held, civil rights cases show that such a requirement falls squarely within Congress’s Commerce Clause power. As the D.C. Circuit Court stated, while the individual responsibility’s requirement that people obtain health insurance “is an encroachment on individual liberty, . . .it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race.”

But just as notable as the decision itself is who wrote it. Senior Judge Laurence Silberman, the author of the opinion, is an intellectual leader among conservatives.  A Reagan appointee, he wrote the opinion striking down D.C.’s gun control laws under the Second Amendment (later affirmed by a 5-4 vote in the Supreme Court); he was repeatedly floated as a possible Supreme Court nominee during the Reagan administration and the first Bush administration; and his former law clerks have frequently moved on to clerkships with the conservative Supreme Court justices and (previously) to high level positions in the second Bush administration. His opinion finding the ACA constitutional is carefully reasoned and resoundingly strong. It recognizes that the individual responsibility provision is not meaningfully different in constitutional terms from laws that have for many, many decades been understood to be within Congress’s power, including the civil rights laws that in some instances compel individuals to make economic transactions that they would otherwise avoid on the basis of race or sex. Moreover, while Judge Kavanaugh, a conservative Bush II appointee whose appointment was blocked for several months by Senate Democrats and who worked with Ken Starr during the Clinton impeachment investigation, dissented from Judge Silberman’s decision, his dissent did not argue that the ACA was unconstitutional. Rather, it argued that the court should not be considering the case at all, as the challenge had no right to come to court prior to 2014, when the individual responsibility became effective. In other words, he too would have ruled against the ACA’s challengers.

Tomorrow, the Supreme Court will meet to consider whether to review the previous decisions by courts of appeals on the constitutionality of the ACA. While the case decided yesterday will not be on the list of the cases that the Supreme Court will consider at this meeting, it is hard not to wonder whether Judge Silberman’s opinion will be the subject of at least passing conversation. Let’s hope it is a harbinger of the eventual Supreme Court decision on this issue.