Judge Laurence Silberman

by Jeremy Leaming

The Obama administration’s signature domestic achievement, the Patient Protection and Affordable Care Act, which requires many people to purchase health care coverage in 2014, is a reasonable and constitutional means to provide millions of uninsured with health care coverage, the Department of Justice argues in a brief lodged today with the Supreme Court.

The brief “arguments track the Obama administration’s arguments before lower courts,” Brian Beutler reports for TPM, which also provides access to the 130-page document.

As Beutler notes, the DOJ explains why the law’s so-called individual mandate is a constitutional means to help millions of Americans afford health insurance. The law bars insurance companies from denying coverage or charging more to people who have pre-existing medical conditions. For that provision of the law to work, however, the law must require individuals who can afford health insurance to obtain minimum coverage or pay a penalty via their annual income tax returns.

The DOJ’s brief argues that the law is a permissible regulation under its constitutional authority to regulate commerce and its taxing power.

The federal government already regulates the health care market – Medicare and Medicaid are examples. However, millions of people, because of a lack of additional regulation have been unable to afford health care insurance or been denied it because of preexisting conditions.

The DOJ argues that the law’s so-called individual mandate will bridge the gap.

“The uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually,” the brief states. “That cost-shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

by Jeremy Leaming

Turning aside a Religious Right group’s challenge to the Obama administration’s signature law, a “conservative-leaning” federal appeals court today upheld the constitutionality of an integral provision of the health care reform law.

In a 103-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit supported a lower district court’s opinion that found constitutional the law’s minimum coverage provision, which requires individuals, starting in 2014, to maintain health care coverage, or pay a penalty, called a “shared responsibility payment.” Specifically the district court held that the minimum coverage provision was a legitimate regulation of economic activity pursuant to the Commerce Clause and the Necessary and Proper Clause.

ACS Board Chair Geoffrey R. Stone lauded today’s opinion, saying it represented yet another rejection of opponents’ cramped vision of the Constitution:

“If those who challenge the constitutionality of the Affordable Care Act had their way, our federal government would be unable to tackle serious national problems,” Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, said. “It is particularly noteworthy that today's opinion was written by Judge Laurence H. Silberman, one of the most respected conservative jurists in the nation. Judge Silberman, who was appointed to the bench by President Ronald Reagan and was awarded the national Medal of Freedom by President George W. Bush, flatly rejected the constitutional challenge, explaining that 'the right to be free from federal regulation . . . yields to the imperative that Congress be free to forge national solutions to national problems.'"

Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, told ACSblog, “There is no judge more respected in conservative legal and political circles than Laurence Silberman, and it is hard to imagine anything that could take more of the wind from the sails of ACA opponents than this terse, unequivocal ruling that their case against the ACA individual mandate has no ‘real support in either the text of the Constitution or Supreme Court precedent.’”

Lazarus continued, “Especially coming in the wake of the Sixth Circuit Jeffrey Sutton’s similarly sweeping rejection of the opponents’ case, and in particular, coming virtually on the eve of the Supreme Court’s November 10 conference on whether to accept review of the pending ACA cases, the Court’s conservative bloc is facing strong recommendations to handle this case as judicial conservatives, not libertarian radicals or political activists.”

Lazarus is author of two ACS Issue Briefs, one on the constitutionality of ACA’s minimum coverage provision, and the other addressing opponents’ arguments against the scope of the federal government’s power to regulate commerce.