Why Judge Silberman’s Decision on Health Care Reform Law Matters

by Jeremy Leaming

As the Supreme Court justices near a decision on whether to grant review of a legal challenge to the Obama administration’s landmark health care reform law, the Patient Protection and Affordable Care Act, a potentially persuasive path for addressing the matter has emerged for the high court’s conservative wing, Simon Lazarus writes for Slate.

Lazarus, public policy counsel for the National Senior Citizens Law Center, takes a closer look at this week’s opinion from the U.S. Court of Appeals for the District of Columbia Circuit, noting that the majority opinion written by Reagan-appointee Judge Laurence H. Silberman “directly confronted the challenge to the individual mandate [the ACA’s integral provision requiring individuals to carry health care insurance starting in 2014], and rejected it outright. That’s a formidable statement from a conservative icon – and a warning shot to the justices of the Supreme Court.”

Silberman’s opinion has grabbed attention because of his conservative bona fides, but Lazarus says the real power behind it rests on the methodology used to dismantle opponents’ arguments against the law.

Lazarus, for example, notes:

Silberman begins his argument by “look[ing] first to the text of the Constitution.” In effect, he urges comrades, think “strict constructionist” conservatism rather than libertarian-flavored generalities about “limited government,” “federalism,” “liberty,” and the like. There is, he notes, “no textual support” for the challengers’ argument that Congress’ regulatory power applies only to “those already active” in commerce. He backs this textual argument up by brandishing a broad 18th-century definition of the constitutional term regulate, from Samuel Johnson’s 1773 Dictionary of the English Language. Probing contemporaneous dictionaries and other such sources is a favorite technique of the court’s most devout “originalists,” Justices Antonin Scalia and Clarence Thomas. “At the time the Constitution was fashioned,” Silberman observes, “to ‘regulate’ meant, as it does now … to ‘direct,’ which in turn meant, among other things, ‘[to] order; to command.’ ”

Thus, he nimbly skewers ACA opponents’ root contention -- that the “original meaning” of the document, and the “original intent” of its framers, bars Congress from requiring individuals to obtain insurance, as distinguished from regulating them once they buy it.

Lazarus, author of two ACS Issue Briefs, one centering on the constitutionality of the individual mandate, the other on the opponents’ radical limited-government argument against the law, notes that Silberman is not the only “prominent Republican appointee” to take this approach, and concludes that as the Supreme Court’s “conservative justices brace for their turn in the health care reform wars, they are receiving pointed recommendations – from their own side of the political and ideological spectrum – to leave this battlefield to politicians and voters.”

See Lazarus’s entire article here.