Tuesday’s opinion will get attention not just because of its author or its result, but because of its terse style and shrewd deployment of argumentative methodologies favored by conservatives. Silberman begins his argument by “look[ing] first to the text of the Constitution.” In effect, he urges comrades, think “strict constructionist” conservatism rather than libertarian-flavored generalities about “limited government,” “federalism,” “liberty,” and the like. There is, he notes, “no textual support” for the challengers’ argument that Congress’ regulatory power applies only to “those already active” in commerce. He backs this textual argument up by brandishing a broad 18th-century definition of the constitutional term regulate, from Samuel Johnson’s 1773 Dictionary of the English Language. Probing contemporaneous dictionaries and other such sources is a favorite technique of the court’s most devout “originalists,” Justices Antonin Scalia and Clarence Thomas. “At the time the Constitution was fashioned,” Silberman observes, “to ‘regulate’ meant, as it does now … to ‘direct,’ which in turn meant, among other things, ‘[to] order; to command.’ ”
Thus, he nimbly skewers ACA opponents’ root contention—that the “original meaning” of the document, and the “original intent” of its framers, bars Congress from requiring individuals to obtain insurance, as distinguished from regulating them once they buy it.
Similarly, Silberman dispatches the nostrum endlessly repeated in political and media arenas as well as the courts: that the individual mandate represents an unprecedented and radical breach of individual autonomy. “Certainly,” he acknowledges, citing examples from court precedent, it “is an encroachment of individual liberty, but 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 described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.” Silberman concludes by noting that the right to be free from regulation must yield to “the imperative that Congress be free to forge national solutions to national problems.”
Silberman’s approach should carry increased weight on the Supreme Court because he is not the first prominent Republican appointee to take it. On the contrary, on June 29, Judge Jeffrey Sutton of the 6th Circuit Court of Appeals, a one-time wunderkind pro-states’-rights litigator and George W. Bush appointee, issued a lengthier but substantively equivalent decision upholding the mandate. Silberman’s colleague Brett Kavanaugh, while he urged rejection of the case for procedural reasons, observed, most interestingly, that overturning the mandate could imperil a potential policy “shift” (favored by conservative leaders like Rep. Paul Ryan and presidential candidate Mitt Romney) toward privatizing “social safety net” programs. Privatized social services, Kavanaugh wrote, “combined with mandatory-purchase requirements might become a blueprint” for policy, so “courts should be very careful before interfering.”
Judge Stanley Marcus, appointed to the 11th Circuit Court of Appeals by President Clinton but previously appointed to a district court judgeship by President Reagan, hinted at a similar analysis in his 100-page dissent from the 11th Circuit’s 2-1 decision to strike the mandate in August. These strands may be evidence of the emergence of a third, policy-wonk-driven conservative take on the constitutionality of mandatory insurance—reinforcing mainstream judicial restraint push-back against libertarian clamor to strike it down.
In sum, as the conservative justices brace for their turn in the health reform wars, they are receiving pointed recommendations—from their own side of the political and ideological spectrum—to leave this battlefield to politicians and voters. As Silberman notes, deflecting still another factoid often emphasized by ACA opponents, whether Americans can be required to purchase a product or service seems “a political judgment rather than a recognition of constitutional limitations.”