By Simon Lazarus, Public Policy Counsel to the Federal Rights Project of the National Senior Citizens Law Center, frequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.
Last Friday, Sept. 23, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on the constitutionality of the Affordable Care Act (ACA) individual mandate to carry health insurance or pay a tax penalty. Major media barely covered the event, perhaps afflicted by ACA litigation fatigue (three circuits have already ruled on the issue). This is unfortunate, because, from the outset, the argument took an unexpected turn, with potentially significant implications for the outcome of the ACA cases.
The two Republicans on the three-judge panel, Reagan appointee Laurence Silberman and Bush II appointee Brett Kavanaugh, displayed in-depth grasp and even sympathy for arguments supporting the mandate. During the first half of the session, when attorney Edward White of the conservative advocacy group American Center for Law & Justice outlined his case for overturning the mandate, they fired more, and more aggressive, questions than did the third member of the panel, Jimmy Carter appointee Harry Edwards. To be sure, when the Justice Department’s turn came, the two Republican appointees threw equally probing – if somewhat more predictable – challenges at Deputy Assistant Attorney General Beth Brinkmann. Moreover, they appeared less than satisfied with Brinkmann’s answers on some key issues. But, against the backdrop of opinions upholding the mandate by respected Republican judges Stanley Marcus (in dissent on the Eleventh Circuit) and, especially, Jeffrey Sutton (in the majority on the Sixth Circuit), Friday’s argument suggests that, among Republican appellate judges with legal and political throw-weight – which both Silberman and Kavanaugh possess – there may be substantial resistance to overturning the ACA mandate. At a minimum, neither judge showed an appetite for reflexively parroting Republican talking points, along the lines of the Virginia and Florida district court decisions that struck the mandate down last December and January.