Tag Archives: Affordable Care Act

Could President Santorum Refuse to Enforce the Affordable Care Act?

In a short article in the New Yorker, Jeffrey Toobin takes issue with speculation by Judge Kavanaugh, in his dissent from the D.C. Circuit’s Affordable Care Act decision, that “the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.” Continue reading

ACA Challengers Ask Supreme Court to Reverse Judge Silberman

Plaintiffs who lost their healthcare appeal in the D.C. Circuit petitioned the Supreme Court yesterday to hear their case along with the related cases already on its docket. Continue reading

Judge Kavanaugh Shows the Supreme Court How to Duck the Individual Mandate

Judge Silberman’s majority opinion upholding the Affordable Care Act’s individual mandate was largely unexpected. But Judge Brett M. Kavanaugh‘s dissent on jurisdictional grounds should have come as no surprise. Continue reading

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:

Supreme Court Could Decide Whether Retroactive Rulemaking Requires Express Statutory Authorization

[Update: The Supreme Court denied cert on Monday, November 7, 2011.]

At its conference tomorrow, the Supreme Court will consider whether to grant cert in a D.C. Circuit case only an admin lawyer could love: National Petrochemical & Refiners Ass’n v. EPA, No. 11-102 (S. Ct.). Continue reading

Judge Kavanaugh Raises Anti-Injunction Act Concerns About Individual Mandate Challenge

In yesterday’s oral argument on the Healthcare Act, Judge Brett Kavanaugh, one of two Republican-appointed judges on the panel, expressed a “major concern” that the Anti-Injunction Act might bar the current challenge to the legislation. Under that theory, recently adopted by the Fourth Circuit in Liberty Univ. v. Geithner, No. 10-2347 (4th Cir. Sept. 8, 2011), Obamacare’s opponents must wait to challenge the individual mandate in a tax refund suit. That cannot happen until the individual mandate goes into effect in 2014 and individuals who fail to purchase insurance are taxed.

Although the Supreme Court may be more likely to grant cert in another Healthcare case, Judge Kavanaugh‘s views should be of particular interest to anyone trying to read the tea leaves about the Supreme Court’s ultimate resolution of the question. Judge Kavanaugh clerked for Justice Kennedy, who is widely expected to be the swing vote on Obamacare. Whether or not the D.C. Circuit case ever appears before the high Court directly, it gives Judge Kavanaugh the chance to write another bench memo for his old boss, at least on the question of whether an individual taxpayer’s challenge is justiciable. (Other cases involve challenges by States to the Healthcare Act.)

Judge Kavanaugh recently aired his views on the Anti-Injunction Act in his dissenting opinion in Cohen v. United States, No. 08-5088+, 578 F.3d 1 (D.C. Cir. 2009) and again when that case was reheard en banc and decided last July. The AIA provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U.S.C. § 7421(a). Relying on that statute, Judge Kavanaugh would have blocked a challenge under the Administrative Procedure Act to the IRS’s procedure for refunding a telephone excise tax. The panel and en banc majorities ruled for the taxpayers, holding that a procedural challenge of this sort is not prohibited by the Anti-Injunction Act because it is concerned with procedure, not “assessment or collection.” In his panel dissent, Judge Kavanaugh wrote,

“[W]e could line Constitution Avenue from this Courthouse to the IRS Building with judicial decisions that apply [the Declaratory Judgment Act], the Anti-Injunction Act, the statutory exhaustion principle, and the ripeness doctrine and hold that challenges to tax laws and regulations must occur in refund suits.”

578 F.3d at 21-22.

The plaintiffs in Seven-Sky v. Holder, No. 11-5047, challenge the Patient Protection and Affordable Care Act on the grounds that the individual mandate exceeds the constitutional power of Congress and violates the Religious Freedom Restoration Act (“RFRA”) of 1993. The other judges on D.C. Circuit panel are Senior Judges Edwards and Silberman.

(Hat Tip: Nedra Pickler and Mark Sherman, Appeals court hears challenge to health care law (AP Sept. 23, 2011))

Prior Coverage:


  • Randy Barnett, Oral Argument in the DC Circuit Mandate Case (Volokh Conspiracy, Sept. 27, 2011) (“While some press accounts have focused on Judge Kavanaugh’s forceful questioning about the AIA—and it was indeed forceful—I thought the government’s counsel was effective in countering his textual analysis to the point where he volunteered that it was a ‘close’ issue. In the end, I feel confident that the AIA issue will not prevail, especially given that both the government and the challengers agree it does not apply for good reasons, and all but 2 federal judges so far have concurred in this assessment.”)
  • Barnett, supra (“UPDATE: When I expressed the opinion that, “In the end, I feel confident that the AIA issue will not prevail,” I was speaking of the legal challenges to the ACA as a whole, not to the outcome of the DC case in particular. Judge Kavanaugh’s concerns were serious and genuine, and I am hopeful but not ‘confident’ that the government’s textual arguments, and a nice metaphor offered by the counsel for Seven-Sky, were enough to satisfy him.”).