D.C. Circuit Paves Way for Supreme Court Consideration of Obamacare Posted by Ilya Shapiro
Today the D.C. Circuit ruled that the individual mandate is a constitutional exercise of federal power under the Commerce Clause. Senior Judge Laurence Silberman (Reagan appointee) wrote the opinion, which was joined by Senior Judge Harry Edwards (Carter appointee). Judge Brett Kavanaugh (George W. Bush appointee) dissented on jurisdictional grounds without reaching the merits, finding that the Anti-Injunction Act barred the suit until the individual mandate/penalty/tax goes into effect. (The case is Seven-Sky v. Holder; see Cato’s amicus brief and a quick breakdown by Tim Sandefur.)
Sure, this is a loss for our side but it’s not a big deal. Every development in the Obamacare litigation has been anticlimactic since the Eleventh Circuit split with the Sixth, guaranteeing that the Supreme Court would take the case. Today’s ruling, therefore, is notable not so much for its result — upholding the individual mandate — as for the reluctance with which it reached it.
After acknowledging the novelty of the power Congress is asserting, the court expressed concern at “the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” In other words, the majority saw itself bound by the Supreme Court’s broad reading of federal power under the Commerce Clause but felt “discomfort” at reaching a result that seemingly had no bounds.
Indeed, the government has yet to tell any court in any of the cases what it cannot do under the guise of regulating interstate commerce. But rest assured that the Supreme Court will ask again, and soon — it considers the myriad cert petitions later this week. And if the high court is as unsatisfied with the government’s jurisprudential non-theory as the D.C. Circuit was, it will not hesitate to strike down this expansion of federal power.
“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Kennedy for a unanimous Court last term (United States v. Bond). “Federalism secures the freedom of the individual.”
I am confident that the Supreme Court will not allow this unprecedented invasion of individual liberty.
cato-at-liberty.org
Of Presumptions and Principles Posted by Roger Pilon
Having quickly read the D.C. Circuit’s ObamaCare decision that came down this morning upholding the statute’s individual mandate, I’m struck by this line from Judge Laurence Silberman’s 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.
I should think that in a free society, living under a Constitution of enumerated and thus limited powers, that the point should be stated precisely the other way around, namely:
No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority reaches individuals who are not presently engaging in an activity involving, or substantially affecting, interstate commerce.
In other words, is America’s fundamental political principle “everything that is not given (to the government) is retained,” or is it rather “everything that is not retained is given”? What is the presumption, and who has the burden of proof? Since the New Deal Court’s “constitutional revolution,” of course, we’ve lived, unfortunately, under the latter, and paid the price.
cato-at-liberty.org |
