The U.S. Court of Appeals for the District of Columbia dismissed a claim from a Christian legal group that a provision in the law requiring almost all Americans to get health insurance--known as the individual mandate--violates the Constitution.Not only is Judge Silberman a Reagan appointee, he was awarded the Presidential Medal of Freedom by none other than George W. Bush.
The opinion was written by Judge Laurence Silberman, who was appointed by President Ronald Reagan and is known as a conservative.
Judge Silberman, who wrote the opinion was actually quite brilliant in the simplicity of the court's decision. It was basically this: Yes, Congress has the power to regulate health insurance purchasing through its constitutional authority to regulate interstate commerce, and no, that one is not at a point in time not a participant in the health care market is not relevant to whether one can be required to purchase insurance. In addition, the court also notes, without countering, the government's argument that the broader scope of the legislation, i.e. the provisions governing community rating (restrictions on pricing) and guaranteed issue (banning the use of pre-existing conditions as a discriminatory factor to deny health insurance coverage). Because those provisions are beyond debate (neither side challenges those), other provisions reasonably meant to effectuate those provisions are also constitutional.
From the court's decision:
Appellants do not question that Congress can regulate the interstate health care and health insurance markets, or that Congress reasonably could conclude that decisions about whether to purchase health insurance substantially affect interstate commerce.So if they don't disagree that Congress can reasonably find the health care and health insurance markets under their authority with interstate commerce, what is their beef? Basically (at least legally) that Congress, even finding that something falls under a its interstate commerce powers, cannot force people to participate in that market, regardless of their likelihood to become participants at one point anyway.
The contested issue here is whether the Government can require an immensely broad group of people–all Americans, including uninsured persons with no involvement in the health insurance and health care markets–to buy health insurance now, based on the mere likelihood that most will, at some point, need health care, thus virtually inevitably enter that market, and consequently substantially affect the health insurance market. Appellants say that Congress cannot regulate based on such sweeping generalizations. Only individuals who are voluntarily engaging in an “activity” related to interstate commerce–not the uninsured, who are “inactive”–are within the scope of the Commerce Clause.The answer from the Reagan appointee on this? Simple. Nowhere in the Constitution or Supreme Court precedence does it ever say that Congress, within its powers to regulate interstate commerce, can only regulate those people or entities engaging in a commercial activity at the moment.
No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.Ta-da! With that underlined line above, the court just took the wind out of the sail of those who are challenging the individual mandate provision. Congress has the power to in fact require action under its authority to regulate commerce, not simply regulate currently active parties. This might seem odd at first but it is rather simple. Without this interpretation of the language in the commerce clause, Congress would likely be unable to require that you wear a seatbelt while you drive - after all, just because you drive doesn't automatically mean that you are going to get into an accident!
We look first to the text of the Constitution. Article I, § 8, cl. 3, states: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” [...] In other words, to “regulate” can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term “commerce” limited to only existing commerce.
The court proceeds to make this point a bit clearer here:
Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause. The shift to the “substantial effects” doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants’ argument; its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants’ argument–that Congress’s power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. See United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 (1942) (surveying cases). Whether any “particular person . . . is, or is not, also engaged in interstate commerce,” the Supreme Court expressly held, is a mere “fortuitous circumstance” that has no bearing on Congress’s power to regulate an injury to interstate commerce.In other words, "I'm not doing it, therefore mandate X should not apply to me" has never been an acceptable legal argument. If the collective actions (or inactions) affect interstate commerce substantially (to learn the answer to this question, ask if it helps the bottom lines of insurance companies headquartered in one state to kick people off insurance in another state), then Congress is within its rights to regulate that behavior. As a matter of fact, the Supreme Court has indicated as recently as 1990 unanimously that yes, Congress can make one purchase a private product.
I don't think that the conservatives are fighting this because they don't know these things. These are not hard to understand. These are constitutional principles that courts have operated under for a very long time in this country. What they are counting on is an activist Supreme Court that they hope will see it fit to derail the president's signature achievement and give the health insurance industry back its powers to make life-and-death decisions. But if they can't even convince a guy who is so conservative that he was appointed by Ronald Reagan and honored by George W. Bush, it is rather doubtful that they can convince the Supreme Court, even as conservative and activist as it is.
But if they are relying on the corporatist tendencies of the present Court to achieve their mission, they might be wrong. There is no worse scenario for the health insurance industry than to have only the individual mandate dismissed while the rest of the law stands. Maintaining community rating and guaranteed issue provisions will, yes, raise costs prohibitively, but will also likely put the insurance industry out of business if people start waiting till they get sick to get insurance (which they will have no reason not to do, should the mandate go away). Given that this is the focus of the challenge - the individual responsibility provision - the current court has the incentive to rule in favor of the mandate whether they are upholding constitutional law or the interests of their corporate benefactors.