On Thursday the nine members of the Supreme Court will gather in a conference room to discuss whether they should agree to review the constitutionality of President Obama’s signature legislative accomplishment, the Affordable Care Act. On Tuesday, in a courtroom not far from where the justices will meet, three lower-court judges issued a decision that sharply increased the chances that the law will survive.
The Court of Appeals for the District of Columbia Circuit released a decision in which all three judges on the case rejected a constitutional challenge to the individual mandate, which requires individuals to carry health insurance or pay a tax penalty. One of the three judges, George W. Bush appointee Brett Kavanaugh, finessed opining on the merits; he would have barred hearing the case until after the mandate takes effect in 2014, citing an Internal Revenue Code requirement that the legality of taxes cannot be challenged in court except by taxpayers disputing an existing collection effort. But Senior Judge Laurence Silberman, a Reagan appointee writing for himself and Carter appointee Harry Edwards, directly confronted the challenge to the individual mandate, and rejected it outright. That’s a formidable statement from a conservative icon—and a warning shot to the justices of the Supreme Court.
Silberman boasts a history of service to Republican presidents and conservative causes unmatched by any member of any court, including the current Supreme Court. Among many other entries, his résumé includes stints as acting attorney general during the Watergate crisis and as co-chair of George W. Bush’s 2004 blue-ribbon commission to investigate U.S. intelligence prior to the Iraq invasion. His judicial decisions include a vote to strike down the independent counsel statute threatening the Reagan presidency (in 1988) and the District of Columbia handgun ban in 2002.He was also awarded the Presidential Medal of Freedom in 2008 by George W. Bush. Without question, Silberman’s decision will be perused by all members of the court, most particularly its five conservatives, prior to Thursday’s conference and, more importantly, before they render a final decision in 2012.
His opinion is not equivocal: He openly scorns the Affordable Care Act’s opponents as unable to “find real support [for their case] in either the text of the Constitution or Supreme Court precedent.” And while Silberman’s vote for upholding the mandate took most media observers off guard, it is neither isolated nor necessarily surprising. Until the ACA neared enactment in late 2009, almost all mainstream legal conservatives had—for nearly six decades—endorsed the post-New Deal Supreme Court’s consistent deference to legislators’ judgments about how best to regulate the national economy.
Robert Bork and the generation of conservative constitutionalists for whom he spoke once called the activist Supreme Court of the Lochner era, during which early 20th century pro-business justices struck down multiple economic regulatory reform laws, “the quintessence of judicial usurpation of power.” During the post-New Deal decades, only a handful of libertarian academics championed the idea of aggressive Supreme Court-imposed constraints on federal economic regulatory authority. The ACA lawsuits have suddenly catapulted these recently marginalized zealots to center stage, convincing many observers that libertarian activism has captured control of legal conservativism, just as Tea Party take-no-prisoners anti-government rigidity dominates Republican political ranks.
Silberman’s decision signals that this media-fueled impression is at best premature. Despite intense short-term political pressures and long-term ideological stakes, leading conservative jurists appear likely to stick to their traditional judicial restraint canon when deciding the fate of the ACA.
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.”