Thursday, November 10, 2011

A Harbinger of Things To Come?

Sometimes the glass is just plain full.  For over a year the country has been watching a heated and tense legal tennis match going on between conservative-leaning courts and liberal-leaning courts over the legality of President Obama’s signature legislation, the Affordable Care Act.  Conservatives have been adamant in their opposition to the individual mandate, calling it unconstitutional and an infringement of their liberty.  Proponents have consistently held that the only way to ensure that every one would be covered was to include a mandate in the law.

Prior to this week, the score of this wild back and forth volley was deadlocked with one court ruling in support of the mandate, one against and one court refusing altogether to hear the case.  Now the U.S. Appeals Court for the District of Columbia Circuit – a conservative court if ever there was one – has cast the tie-breaking vote in favor of the mandate.

The majority opinion was written by Judge Laurence Silberman – a Reagan appointee!

“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.

“That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of constitutional limitations.  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."

The dissenting opinion issued by Judge Brett Kavanaugh, also a conservative appointed by George Bush, was hardly helpful in that he said that the court lacked the jurisdiction to even hear the case due to the fact that the law does not take effect until 2014.

The significance of this decision cannot be stressed enough.  A conservative court has rejected the argument of the appellants in this case.  This is not only newsworthy but it reveals a fundamental flaw in the prevailing logic that the law’s fate will ultimately be decided along strict political lines.  If anything what this ruling shows is that opponents of the law may be in for quite a surprise as they learn what true judicial restraint could mean.  For if you read the whole opinion by Silberman it is clear that, while he is sympathetic to the claims made by the appellants – as indicated by his use of terms like “encroachment” and “intrusive” – the claims are ultimately irrelevant to the main thrust of their argument. At one point he wrote that the fact that Congress has never mandated individuals to purchase something before “seems to us a political judgment rather than a recognition of constitutional limitations.”  In other words, Silberman was saying, “So what?”

That this decision is the first rendered by a court with no trace of ideology or politics anywhere near it is not only refreshing, it is encouraging.  The Supreme Court will ultimately have the final say, and it is likely that both this decision and the 11th Circuit one out of Atlanta, which struck down the mandate, will figure prominently in its ruling.  While we’re still not out of the woods yet, we are getting closer to the clearing.           

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