Tuesday, November 8, 2011
A three-judge panel of the D.C. Circuit ruled today in Seven-Sky v. Holder that the so-called individual mandate in the federal Affordable Care Act is constitutional.
Judge Silberman and Judge Edwards agreed that the Commerce Clause authorizes Congress to enact the provision. Judge Kavanaugh, dissenting, argued that the Anti-Injunction Act barred consideration of the claim.
Judge Silberman wrote a notably concise and straightforward opinion for the court that dispelled the plaintiff's theory, which he called "novel," that Congress can't regulate inactivity. Here's the gist:
To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question--presented here--of whether "inactivity" can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .
Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity." For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance.
Op. at 30-31 (emphasis in orginal; citations omitted).
The court similarly summarily dismissed the plaintiff's claims about federalism, intrusion into areas of traditional state concern, and the like. Judge Silberman wrote that the idea that health care and health insurance are enclaves of traditional state concern is implausible, given the ubiquity of federal regulation in these areas.
Judge Silberman also mentioned something that we don't always see in these cases: Congressional acts are presumed constitutional. He says that "this may be our most important consideration."
[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]