DC Circuit Upholds Obamacare Despite "Discomfort"
As my doctor likes to say just before subjecting me to something really painful: "you may feel some discomfort." Well, the DC Circuit today confessed to feeling "discomfort" over its decision, but it went ahead and upheld the constitutionality of Obamacare's individual mandate. Sadly, the court's opinion was written by Laurence Silberman, a Reagan appointee who has authored some fine opinions in the past. Silberman swallowed the argument that the Commerce Clause allows the federal government to regulate economic "decisions," which is a polite way to say that government has every right to coerce people into particular transactions.
Silberman's "discomfort" arises from the fact that the government has offered no principle by which to limit this new-found power to regulate "decisions." Silberman tries to reassure us that we won't see "individual mandates" popping up all over the place, because "the health insurance market is a rather unique one, both because virtually everyone will enter or affect it..." But he's dead wrong. Health insurance is not unique, not even "rather unique" to use Silberman's grammatically-challenged phrase. Everyone will, for example, "enter or affect" the market for clothing, food, and toilet paper. There's nothing about health insurance to justify the government's attack on liberty.
Judge Brett Kavanaugh (whose praises I have sung elsewhere on Ricochet) issued a long dissent arguing that the appeal was premature -- that the constitutional issue is not ripe until the mandate takes effect in 2014. But by way of chastising the majority for reaching a premature conclusion, he mentions the implications of their decision:
The majority opinion’s holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts.
On to the Supreme Court? Warning: you might experience some discomfort.
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Comments :
Dec '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
So what is the score at the circuit level now?
Dec '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
How is tell a business they can not refuse serve to certain groups of people, telling person that they can not do use certain drugs, or telling a farmer he can not grow a certain amount of wheat anything like telling me I must buy health insurance?
No one disagrees that the government can prevent you from doing things. What is at issue is whether the government can force you to buy something. The only one of the three examples that even comes close to that is the restaurant one. Am I missing something here?
Oct '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
I'm surprised, as I've seen Judge Silberman on Charlie Rose's show criticizing liberal jurisprudence as motivated, at least in part, by the 'Greenhouse Effect.' I.e. a desire to be praised for making a 'landmark' ruling by N.Y. Times legal writer and law professor Linda Greenhouse.
Edited on Nov 8, 2011 at 12:22pmRe: DC Circuit Upholds Obamacare Despite "Discomfort"
I think it's two Circuit courts (DC & 6th) upholding Obamacare; one (11th Circuit) striking it down; and one (4th) saying that the issue isn't ripe for review yet (same as Judge Kavanaugh's dissent).
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Nyadnar17
I don't think so. I agree with the distinctions you draw. Silberman tries to blur the distinction by pointing out that sometimes the "activity" that the government regulates is very "passive," like, say, laws prohibiting mere "possession" of drug. And so it seems a short step (to him) for the government to regulate inactivity. I find that utterly unconvincing -- as though it is a short step from saying "you can't possess heroine" to saying "you must purchase vitamins."
May '11
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Perhaps....if you own more than one car and both exceed some fixed average mileage rating and you are about to replace one, then you must replace it with a car whose mileage is equal to or less than some fixed mileage rating. If the mandate passes muster via the SCOTUS, there will no longer be any need for: are you kidding? Are you kidding? The Republic of which Franklin spoke will be no more and we will be subjects, for there will always be a way to justify whatever the government wishes to enact. Always.
Aug '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Everyone should be forced to join a health club or face a government fine. After all, good health benefits everyone, right? And those unhealthy people are a drag on the public's 'right' to health care.
So run out and vote for the health club enforcement act of 2015!
(This ad brought to you by the Health Club Alliance, a consortium of health club lobbyists that really only have your best interests at heart. They're really not just using government to create a captive market. No way.)
While you're there, also vote for the Health Club licensing act, which will make it a felony to open a health club unless your instructors are government-certified, the facility undergoes a health and safety analyis by an approved government inspector, and a suitable period of testing and data gathering is carried out.
(This ad also brought to you by the Health Club Alliance, whose members were graciously grandfathered in and are exempt from the requirements new entrants into the market must face, but who still want you to know they have your safety at heart, and are not just restricting new supply to increase profit at your expense).
Dec '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Silberman tries to reassure us that we won't see "individual mandates" popping up all over the place, because "the health insurance market is a rather unique one, both because virtually everyone will enter or affect it..."
It is not his job to predict what will happen, evaluate the market or do any such thing. He is to rule on the law as written. Moreover, if the law doesn't make sense, it doesn't matter, he isn't supposed to fix problems with it from the bench.
It just shows you how diseased our system of jurisprudence is that any judge, let alone this one, would even think of ruling this way.
Feb '11
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
In other words the DC circuit believes the United States is nothing more than a giant slave pen. We can run around loose for now, but as soon as the government decides we shouldn't we must stop and do what we're told. The commerce clause makes it so.
But the DC circuit feels bad about that so it's OK.
I really hope justice Kennedy's coin doesn't land on the wrong side that day or we'll end up with another Dredd Scott decision, which did not work out well.
May '11
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Adam Freedman
Nyadnar17
I don't think so. I agree with the distinctions you draw. Silberman tries to blur the distinction by pointing out that sometimes the "activity" that the government regulates is very "passive," like, say, laws prohibiting mere "possession" of drug. And so it seems a short step (to him) for the government to regulate inactivity. I find that utterly unconvincing -- as though it is a short step from saying "you can't possess heroine" to saying "you must purchase vitamins." · Nov 8 at 1:34pm
Actually, what Silberman is saying is that is a short step from saying "you can't possess heroine" to "you MUST possess heroine."
Dec '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
What about lawyers?
Why can't we force single-payer for lawyers and...set payment rates?
How many lawyers would be for that? How about judges?
After all, shouldn't everybody have free access to courts?
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Adam, I mean no offense to you personally, or any of the fine legal practitioners we have here at Ricochet,...or the other half dozen or so decent ones that may be scattered about. I think 95 percent of them are giving the other 5 percent a bad name. But it seems that fidelity to the Constitution is being replaced by fidelity to sophistry. Silberman is worried about discomfort? He ought to be worried about jurists who employ euphemism to describe unconstitutionality. God save us from lawyers like that.
Edited on Nov 8, 2011 at 6:23pmDec '10
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Dan Hanson: (This ad brought to you by the Health Club Alliance, a consortium of health club lobbyists that really only have your best interests at heart. They're really not just using government to create a captive market. No way.)
(This ad also brought to you by the Health Club Alliance, whose members were graciously grandfathered in and are exempt from the requirements new entrants into the market must face, but who still want you to know they have your safety at heart, and are not just restricting new supply to increase profit at your expense). · Nov 8 at 2:58pm
Dan, I think you've been living in the United States of America these last 30-40 years. Notice every single thing the left obsessives do makes it worse for everybody. Except of course the "Health Club Alliance" and nobody would accuse them of being a 'conspiracy in restraint of trade'. Nope that anti-trust thing is just for the Google guy who gives you a fantastic product totally free of charge and then offers you advanced services at an incredibly low rate. The Obama Crowd_IDIOTS AT YOUR SERVICE.
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Dave Carter
Adam, I mean no offense to you personally, or any of the fine legal practitioners we have here at Ricochet,...or the other half dozen or so decent ones that may be scattered about. I think 95 percent of them are giving the other 5 percent a bad name. But it seems that fidelity to the Constitution is being replaced by fidelity to sophistry. Silberman is worried about discomfort? He ought to be worried about jurists who employ euphemism to describe unconstitutionality. God save us from lawyers like that. · Nov 8 at 6:17pm
Dave - belatedly, no offense taken! Silberman's opinion is awful. He pretends that his hands are tied by existing precedent, particularly the odious New Deal case of Wickard v. Filburn. The opinion is intellectually dishonest -- Wickard can be distinguished six ways from Sunday.
Feb '11
Re: DC Circuit Upholds Obamacare Despite "Discomfort"
Dan Hanson: Everyone should be forced to join a health club or face a government fine. After all, good health benefits everyone, right? And those unhealthy people are a drag on the public's 'right' to health care.
So run out and vote for the health club enforcement act of 2015!
(This ad brought to you by the Health Club Alliance, a consortium of health club lobbyists that really only have your best interests at heart. They're really not just using government to create a captive market. No way.)
While you're there, also vote for the Health Club licensing act, which will make it a felony to open a health club unless your instructors are government-certified, the facility undergoes a health and safety analyis by an approved government inspector, and a suitable period of testing and data gathering is carried out.
(This ad also brought to you by the Health Club Alliance, whose members were graciously grandfathered in and are exempt from the requirements new entrants into the market must face.....
This is so good I want to "Like" it twice!