The ACA withstood yet another legal challenge in the courts. In the words of conservative Justice Laurence Silberman: "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge
November 8, 2011

The ACA withstood yet another legal challenge in the courts. In the words of conservative Justice Laurence Silberman:

"The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local -- or seemingly passive -- their individual origins," wrote Judge Laurence Silberman.

National solutions to national problems. What a concept. Whether one agrees with the form of the solution or not, it is encouraging to hear a conservative justice articulate a reason to be a nation in the first place --- to find national solutions to national problems.

To give you a sense of how huge this is, meet Justices Silberman and Kavanaugh, via ThinkProgress:

When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh — the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.

And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion thatabsolutely obliterates any suggestion that the ACA is not constitutional:

And as ThinkProgress notes, they weren't shy about saying just how far off the mark the challenge is:

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle.

Here's more from Justice Silberman, via the New York Times:

"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 ... or that a farmer cannot grow enough wheat to support his own family," wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

Silberman's references seem to be challenging the United States Supreme Court to consider all existing court precedents in the context of the Affordable Care Act when considering the individual mandate. In some respects, this might be a dangerous game with this current Supreme Court, given that their Citizens United decision overturned long-standing law with regard to protected speech. But the gist of what Justice Silberman seems to be saying is that those laws are established and accepted in this country and in that context, so too should the health care mandate be.

According to CNN, it's unclear whether this decision will be considered alongside the others before the court.

It is unclear whether the high court will include this latest ruling with the other pending health care cases already on its docket. The justices have scheduled a closed-door conference Thursday to consider whether to accept one or more appeals. If they do, oral arguments would likely be held in March, with a ruling by June.

One of the other challenges involves a 26-state coalition opposing the law. A federal appeals court in Atlanta, considering that suit, had earlier found a key provision of the law to be unconstitutional.

The key issue is whether the "individual mandate" section -- requiring nearly all Americans to buy health insurance by 2014 or face financial penalties -- is an improper exercise of federal authority. The states also say that if that linchpin provision is unconstitutional, the entire law with its 450 or so sections must then be scrapped.

Virginia and Oklahoma have filed separate challenges, along with other groups and individuals opposed to the law.

The justices now have the discretion to either frame the case around the "severability" question -- whether the individual mandate section can be separated from the rest of the law -- or expand it to include other legal questions raised in the appeals.

The White House is understandably enthusiastic over this ruling. From Stephanie Cutter, writing on the White House blog:

  • The Affordable Care Act, through the individual responsibility requirement, will require everyone, if they can afford it, to carry some form of health insurance since everyone at some point in time participates in the health care system, and incurs costs that must be paid for. For the 83% of Americans who have coverage and who are already taking responsibility for their health care, their insurance premiums will decrease over time. Only those who are able to pay for health insurance will be responsible for obtaining it and new tax credits and other provisions in the law will make health insurance affordable for middle class families. That’s why the Congressional Budget Office estimated that only 1 percent of all Americans would pay a penalty for not having health insurance in 2016.
  • Opponents of reform wrongly claim that Congress exceeded its authority in regulating when and how people pay for health care. Those who claim that the “individual responsibility” provision exceeds Congress’ power to regulate interstate commerce are simply wrong. People who make a decision to forego health insurance do not opt out of the health care market. Their action is not felt by themselves alone. Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others. Those costs – $43 billion in 2008 alone – are borne by doctors, hospitals, insured individuals, taxpayers and small businesses throughout the nation.
  • Additionally, banning insurance companies from discriminating against people with preexisting conditions helps to ensure that every American who can afford it has insurance. We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with health care. If we’re going to outlaw discrimination based on pre-existing conditions, people should not be allowed to game the system and raise costs on everyone else.

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