Judge Silberman Reluctantly Upholds “an Intrusive Exercise of Legislative Power”

In today’s opinion by Senior Judge Laurence H. Silberman, the D.C. Circuit upholds the Affordable Care Act’s individual mandate over Judge Brett M. Kavanaugh‘s jurisdictional dissent. Although some have expressed puzzlement at the conservative Judge Silberman’s decision, his opinion reads like a reluctant one, compelled by the Supreme Court’s broad interpretation of Congress’s commerce power and conscious of that Court’s unique authority to change course.

In several places, Judge Silberman practically invites the originalists on the Supreme Court to reverse him and unravel decades of the Court’s Commerce Clause jurisprudence, unlikely though that scenario may be:

The Framers, in using the term “commerce among the states,” obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible.

Judge Silberman might also be read to call for Supreme Court intervention in his observation that the individual mandate’s “novelty is not irrelevant” and in his expression of “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.”

There is more than a twinge of regret in the conclusion that “if Congress can regulate even instances of purely local conduct that were never intended for, or entered, an interstate market, we think Congress can also regulate instances of ostensible inactivity inside a state.”

And again:

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

Even if the Supreme Court strikes down the individual mandate, the Court is unlikely to go so far as to upset Wickard v. Filburn, the 1942 decision that Judge Silberman identifies as “the closest Supreme Court precedent to our case.” But Judge Silberman’s opinion suggests he would shed no tears if the Court decided to reverse decades of Commerce Clause doctrine.

Senior Judge Harry T. Edwards joined Judge Silberman’s majority opinion in full and tacked on a one-paragraph concurrence. Perhaps to moderate the dour tone of the majority opinion, Judge Edwards noted that the commerce power is “not without limits”: It is constrained by the Necessary and Proper Clause “if nothing else.”

Judge Kavanaugh dissented on the ground that the Anti-Injunction Act bars challenges to the individual mandate until after it goes into effect. According to Judge Kavanaugh, a taxpayer may challenge the individual mandate only after paying the penalty for failing to purchase health insurance.

Seven-Sky v. Holder, No. 11-5047 (Nov. 8, 2011) (Silberman, S.J., with concurrence by Edwards, S.J., and dissent by Kavanaugh, J.)

From the Majority Opinion:

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.

At the time the Constitution was fashioned, to “regulate” [as used in the Commerce Clause] meant, as it does now, “[t]o adjust by rule or method,” as well as “[t]o direct.” To “direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.” 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.

See also:


  • Noah Kristula-Green, Who is Judge Silberman?, Frum Forum (Nov. 8, 2011) (“It would be particularly ironic if liberals used the new court ruling to rehabilitate their image of Silberman. Suffice to say, they have not always had a high opinion of him. He was appointed by George W. Bush to the Iraq Intelligence Commission in 2004 and was the target of a lot of liberal criticism.”).
  • Judge Silberman’s Strange Opinion, Wall St. J. (Nov. 8, 2011) (“Judge Silberman’s reasoning . . . is, well, peculiar for so distinguished a jurist.”).

But see:

4 responses to “Judge Silberman Reluctantly Upholds “an Intrusive Exercise of Legislative Power”

  1. Pingback: Judge Kavanaugh Shows the Supreme Court How to Duck the Individual Mandate « D.C. Circuit Review

  2. Silberman may have been appointed but he broke away from Reagan’s constitutional belief that growing federal power would one day ruin the Republic. Reagan fought against the government getting their hands into healthcare. Medicare was bad enough but to control 1/6 of our economy…this was adamantly repudiated by Reagan. We need to be reminded that Reagan felt that Socialism would slip into our very government through mandated healthcare. This Judge either forgot that or just got tired of fighting the ultra liberal left.


  4. Pingback: Roberts Turns Kavanaugh’s Taxing Power Hypo Into a Holding | D.C. Circuit Review

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