Posted Tuesday, Nov. 8, 2011, at 1:58 PM
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.
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.