Laurence Silbermann Upholds Obamacare

Reporting on Politics and Policy.
Nov. 8 2011 1:58 PM

Laurence Silbermann Upholds Obamacare

That's got to be the upshot from the D.C. Circuit Court of Appeals' decision on one of the less compelling anti-Obamacare lawsuits. The judge uploading the law: Laurence Silberman, a Reagan appointee, a man who played a role in picking Ken Starr as independent counsel.

Advertisement

The problem for Obamacare foes: Silberman is really merciless in arguing that they don't have a Constitutional case against the health care mandate. "Appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent," he argues. That's hard to dig out from under. Contrast that with how he writes about the government's case.

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.  But to tell the truth, those limits are not apparent to us, 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.

The ball game for the PPACA lawsuits is going to be, probably, a decision on the strong lawsuit filed by a team of attorneys general; the whole thing is supposed to hinge on Anthony Kennedy. But if the libertarian-minded members of the court go along with the Silberman reasoning, it's possible this thing won't even be 5-4. My colleague Dahlia Lithwick speculates a possible 7-2 decision -- 6 votes clearly for the mandate, with Roberts coming in to write the opinion for the majority.

David Weigel is a Slate political reporter. 

TODAY IN SLATE

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Students Aren’t Going to College Football Games as Much Anymore

And schools are getting worried.

Two Damn Good, Very Different Movies About Soldiers Returning From War

The XX Factor

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Why a Sketch of Chelsea Manning Is Stirring Up Controversy

How Worried Should Poland, the Baltic States, and Georgia Be About a Russian Invasion?

  News & Politics
Weigel
Sept. 20 2014 11:13 AM -30-
  Business
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
  Life
Quora
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 20 2014 3:21 PM “The More You Know (About Black People)” Uses Very Funny PSAs to Condemn Black Stereotypes
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.