Well, we now have the last Circuit Court of Appeals decision to digest before hearing later this week or next whether the Supreme Court will take up the challenge and what question will be presented to the Court. Assuming it does, there will then be merits briefs and oral argument. But first, some brief and and very preliminary reactions to today’s decision.
(1) It is another divided decision, which is now the pattern. Whether upholding or striking down the individual mandate, the Court of Appeals judges are all over the map. This is not indicative of a case dictated by previous decisions that has a predetermined outcome.
(2) The decision tracked oral argument as I described it here. Judge Kavanaugh clearly telegraphed his enchantment with the Antitax Injunction Act. Judge Edwards clearly telegraphed his view that little needed to be said to find that the ACA is constitutional (as he said very little art argument or in his concurrence). And, although I hoped against hope that Judge Silberman was not telegraphing his position when he strongly asserted that the “logic” of Wickard v. Filburn authorized economic mandates, sure enough he stuck to that position. (I have already blogged here about why I think Judge Silberman is misreading the actual opinion in Wickard.)
(3) With respect, I beg to differ with my co-blogger Stuart’s post below. Should the Affordable Care be upheld, Judge Silberman’s opinion in no way will provide a template for a majority opinion by any justice, but especially not one by Justice Scalia. Like Judge Sutton’s concurrence in the Sixth Circuit, this opinion has all the hallmarks of a decision its author knows full well is not the last word in the case. Like Judge Sutton, Judge Silberman is punting to the Supreme Court. I am not claiming that he does not believe in the correctness of his decision. I believe that he believes. I am merely claiming that he would never be content with this being the final word on the subject of the scope of Congress’s power. And he knows it won’t be.
There are at least two key passages that Justice Scalia would never write:
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. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.
This is a remarkably blithe acceptance of a claim of a practically unlimited congressional power that belies Chief Justice Marshall’s injunction in Marbury v. Madison that “[t]he powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.” Recall it was Justice Scalia who asked Solicitor General Drew Days during oral argument in Lopez to identify the limit on the government’s claim of power under its reading of the Commerce Clause. Like the government’s attorney here, Days was unable to provide any limit. That was not a winning answer. Therefore, I am confident that, before upholding this power Justice Scalia would need to satisfy his “discomfort” with so “troubling” a “difficulty.” Whatever limiting principle he would craft, it would not be this one:
It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
It most certainly does not “suffice” to identify a factually “unique” circumstance without identifying an administrable constitutional principle that can be applied in future cases. As Judges Dubina and Hull wrote in their jointly-authored Eleventh Circuit opinion:
We are at a loss as to how such fact-based criteria can serve as the sort of “judicially enforceable” limitations on the commerce power that the Supreme Court has repeatedly emphasized as necessary to that enumerated power.... Were we to adopt the “limiting principles” proffered by the government, courts would sit in judgment over every economic mandate issued by Congress, determining whether the level of participation in the underlying market, the amount of cost-shifting, the unpredictability of need, or the strength of the moral imperative were enough to justify the mandate.... Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none.
Justice Scalia knows that, because the Court defers to Congress on such factual predicates, this is really no limiting principle at all.
Then there is the second key passage that I simply cannot imagine being written by Justice Scalia, should he decide to uphold what Judge Silberman concedes (his discussion of Wickard notwithstanding) is an unprecedented claim of power:
The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
Although no one has asserted any such “right,” the proposition that there is a liberty left over or “reserved” after the delegation of powers to the federal government is simply the implication of the enumerated powers scheme, an implication made express by the Tenth Amendment, which secures the reserved powers of both the states and the people. Taken literally, this sentence by Judge Silberman implies that the Tenth Amendment “yields” to the unenumerated “imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.” Indeed, it is this ”imperative” that underlies the logic of Judge Silberman’s entire opinion, which is just the “logic” he finds in Wickard.
However Judge Scalia votes in this case, I would be shocked if he endorses this proposition. (Indeed, Justice Scalia apparently thought that Justice Stevens’s majority opinion in Raich was too broad, so he concurred only with the result. And, while Justice Kennedy did sign onto that opinion, he later affirmed in both Comstock and Bond his view that the Commerce Clause does have justiciable limits.)
In short, Judge Silberman’s opinion decision ultimately rests on his claim that Congress has an unlimited power “to forge national solutions” to whatever it deems to be a “national problem,” which is why the stakes of this legal challenge are so high. Fortunately, his will not be the last word on these constitutional challenges.