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A conservative's unlikely defense of the healthcare reform law

November 9, 2011 |  2:56 pm

Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of ColumbiaOpponents of the healthcare reform law's individual mandate frequently warn that if the government can require the uninsured to buy coverage, it can require Americans to do just about anything. In other words, there's no limit to how far government could go.

That's been a particular rallying cry for conservatives and Republican judicial appointees, such as District Court Judge Roger Vinson of Florida. Finding the Patient Protection and Affordable Care Act to be unconstitutional, Vinson wrote, "If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the act --- that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce' [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted."

That's why it was so striking to see another conservative jurist -- Laurence H. Silberman, whom President Reagan appointed to the Court of Appeals for the District of Columbia -- declare, in essence, "Get over it." Silberman, who upheld the Affordable Care Act  on Tuesday, wrote that nothing in the Constitution's commerce clause or previous Supreme Court rulings bars Congress from regulating economic activity that hasn't happened yet. The uninsured might not be participating in the market for medical care today, Silberman conceded, but they almost certainly will at some point.

Because an individual's decision to buy insurance or obtain treatment is an economic activity that affects interstate commerce, the judge wrote, Congress would clearly have the power to require people to buy insurance when they show up at the hospital for care, "as rather useless as that would be." The Affordable Care Act, Silberman argued, "is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce."

Wait -- how does one consumer's decision to buy or not buy coverage amount to interstate commerce?

According to Silberman, the Supreme Court recognized early in the 20th century "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." He added: "[I]ts 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."

Citing Supreme Court Justice Antonin Scalia's concurring opinion in Gonzales v. Raich, a lawsuit that unsuccessfully challenged the feds' seizure of marijuana plants grown ostensibly for medicinal use, Silberman wrote: "A single individual need not even be engaged in any economic activity -– i.e. not participating in any local or interstate market -– so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. And a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do."

Silberman noted with some disappointment that the federal government's attorneys had not sketched out limits on the federal government's regulatory power. But he concluded, "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."

For what it's worth, appellate Judge Harry T. Edwards cited the limiting principle that Scalia sketched out in his opinion in Raich: "[T]he power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective."

That vaguely worded test sets a low bar, and the individual mandate clears it pretty easily. The mandate is part of a set of insurance reforms aimed at improving public health by reducing the ranks of the uninsured. And if the mandate were removed, only sick people would buy health insurance, causing premiums to skyrocket and more people to drop coverage.

The nine Supreme Court justices are scheduled to discuss  five appeals  related to the Affordable Care Act -- four that challenge rulings that upheld the law, and one that seeks to overturn a ruling that found it unconstitutional. Given the diverging views expressed by various appellate courts, it seems certain that the justices will review the law. The only real question is whether they do it before the 2012 presidential election.

RELATED:

The Supreme Court may end the fight over the healthcare reform law. Or not.

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Elena Kagan on fruits and vegetables

-- Jon Healey

Photo: Judge Laurence H. Silberman in 2004. Credit:  Manuel Balce Ceneta / Associated Press

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