A Decision That Will Set Libertarians’ Hair on Fire

November 8th, 2011 at 5:36 pm | 27 Comments |

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Judge Silberman has issued another tour de force in the extremely interesting opinions generated by Obamacare. I have noted other opinions on Obamacare’s constitutionality but this one is full of interesting tidbits.

The first and most interesting tidbit is who wrote it. The Honorable Laurence H. Silberman is no hippie.

He is a mainstay of Federalist Society meetings. A respected and, medical I will say, online revered member of the conservative legal fraternity in the District of Columbia. He taught a lively course-if such a thing can be imagined-in administrative law at Georgetown which I took nearly a quarter of a century ago. The Federalist Society “prom” is this weekend and for the only the second time in 20 years I can’t go and this makes it worse!

What Judge Silberman does in this opinion is either a) enrage Justice Thomas and discomfit Justices Kennedy and Scalia on the scope of the commerce clause or b) place a marker down for “big government judicial conservatives” Roberts and Alito on why Obamacare must be upheld in all its particulars. (I of course believe all Democratic appointees will uphold all aspects of Obamacare).

Judge Silberman notes that he is not going to lard the record with the facts of the bill as its already been covered by other circuits, and in any event his opinion doesn’t matter so much as this will be going to the Supreme Court. Then he covers a jurisdictional question of interest only to lawyers and other obsessives.

He relies most strongly on two cases as dispositive that are most likely to drive conservatives nuts. Wickard v. Filburn and Heart of Atlanta MotelWickard I have attacked elsewhere. It is the most shocking case one learns in law school and is almost designed to teach a student that words mean nothing.

Hearts of Atlanta has a different problem. This case relied on the commerce clause, not the 13th-15th amendments, to affirm Congresses power to regulate motels so that they could not discriminate on the basis of race. The story goes that Bobby Kennedy read Wickard, figured it stood for the proposition that the federal government could do anything it wanted, and so the 1964 Civil Rights bill relied on the commerce clause, rather than the Civil Rights Amendments to the Constitution for its authority. Thus, Wickard corrupts even popular legislation that had perfectly legitimate basis of Congressional power.

He then notes that, yes, this bill is unprecedented but the burden to strike down Congressional enactments is on those opposing the enactment, nothing in the Constitution as interpreted by the Supreme Court in regards to economic regulation does so. Worse, he notes that neither the Government nor he has a limiting proposition to the fact that the Government is entitled to tell a person to buy a product he may not want.

Finally, just in case the Paulites hair was not yet on fire and there was one person at Cato who had not yelled out his window Howard Beal-style while reading the opinion, he notes that our drug and pornography laws are similarly upheld even though the Federal Government does not have general police power.

This opinion is going to be cited by every liberal on the Supreme Court. It may very well be Justice Alito’s touchstone-dooming the judicial end of Obamacare no matter what other conservative Justices do. If Justice Alito believes that cabining Wickard is tantamount to the end of federal drug and pornography enforcement, and a judicial attack on legitimate congressional power–as Silberman apparently does–that is the end of the judicial removal of this statute. More reason to vote today!

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27 Comments so far ↓

  • medinnus

    More reason to vote today!

    *chuckles* The only part of any of the author’s diatribes I’ve ever agreed with – and probably not for the reason he wrote it.

    Vote to toss Tea Party lunatics back into the harbor. Sanity back into government. Huntsman in 2012!

  • Rillion

    “If Justice Alito believes that cabining Wickard is tantamount to the end of federal drug and pornography enforcement, and a judicial attack on legitimate congressional power–as Silberman apparently does–that is the end of the judicial removal of this statute. More reason to vote today!”

    I would probably be willing to take that result, striking down ACA in exchange for ending federal drug enforcement.

    • ottovbvs

      “I would probably be willing to take that result, striking down ACA in exchange for ending federal drug enforcement.”

      And pornography? I’m told by someone qualified that this opinion by Silberman was a barn burner and apparently given his obvious state of shock Vecchione thinks so too.

  • Frumplestiltskin

    Congress found that without the mandate, uninsured individuals, in the aggregate, would consume costly health care services and pass on those costs to other market participants. Without the mandate, in Congress’s view, other reforms–namely prohibitions on denying health insurance coverage to individuals with pre-existing medical conditions (the “guaranteed issue requirement”) or using an individual’s medical history to justify higher insurance premiums (the “community rating requirement”)–would increase average
    premiums, exacerbate adverse selection problems, and discourage individuals from obtaining coverage until they were sick.

    I have not read one Republican refute any of these basic facts. Personally, I would have preferred that it was tax and rebate, as we do with mortgage interest deductions, to address the issue of free riders, but essentially government is not forcing anyone to buy insurance, you can choose not to buy insurance and pay the fine, or tax (The Fourth Circuit is of the view that
    “any tax” includes any exaction collected by the IRS, even if
    Congress called it a “penalty.” and I agree with them)

    In addition, government will provide subsidies to those who can not afford to purchase health insurance on their own.

    So what libertarians are advocating is to be free riders, to stiff hard working Americans by delusionly stating that no, they will never get sick or that they have the financial wherewithal to fund all medical contigencies, both of which are lies.

    I think it will be 7-2 in favor with Thomas and Kennedy voting against.

    • Chris Balsz

      Can’t argue with that model of gouging everybody beyond what they receive back, like it or not. It’s what made the Mafia millionaires.

      • balconesfault

        Can’t argue with that model of gouging everybody beyond what they receive back, like it or not.

        Everyone in America receives the benefit of access to emergency health care, whether they actually forsee (and have the resources) to pay for that access or not.

        Does your car insurance company “gouge you” when you go for a 10-year stretch without involvement in an accident, but still make your payments?

  • Frumplestiltskin

    Finally, just in case the Paulites hair…

    And who the hell cares about the Paulnuts? What are they, 3 or 4% of the population?
    The only reason why Republicans are against the mandate is because the Democrats are for it, the ACA was modeled after the plan the Romney himself laid out which was promoted by the Heritage foundation and people like Newt Gingrich, 4 years ago it was considered Republican and responsible to be for the mandate, now it has become a tool of Satan. And I am tired of this nonsense that Romneycare could only work in Mass. but no where else, as though people in NJ have a different biology or something. Economy of scale works for business but not for government now?

    • Chris Balsz

      Illegal aliens are about 4% of the national population , but that’s too many to prosecute, according to this Administration.

      • balconesfault

        You really believe that it would be in America’s best interests to expend the resources necessary to prosecute 4% of our population, mostly on the basis of wanting to go where there is work?

      • PracticalGirl

        Illegal aliens are about 4% of the national population , but that’s too many to prosecute, according to this Administration.

        And the last, and the one before that and the one before that, and the one before that. This isn’t an issue unique to the Obama administration. It’s a stance taken by every President since and including Reagan. Why do you think that is?

  • Frumplestiltskin

    oh, and since I never mentioned it, personally I agree that the plaintiffs hold no standing as per this: Some have suggested that the Anti-Injunction Act does
    not apply because these suits have been brought so far in
    advance of the mandate’s 2014 effective date. But there is no
    “early-bird special” exception to the Anti-Injunction Act….
    If Congress wants the courts to decide the individual
    mandate suits now, Congress can always remove the
    jurisdictional limit; the Anti-Injunction Act’s jurisdictional
    bar is statutory, not constitutional. Absent such congressional
    action, however, we must adhere to the statutory constraints
    on our jurisdiction no matter how much the parties might
    want us to jump the jurisdictional rails and decide this case

    So lets wait until the mandate comes into affect.

  • Graychin

    I pay very little attention to libertarians with their hair on fire. Isn’t that their everyday rollout?

    From Silberman’s opinion:

    “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause. But the Government does stress that the health care market is factually unique; there are few other markets, it says, where participation is a virtual certainty, or where declining to buy a product disproportionately causes a national economic problem.

    Libertarians claim to be opposed to welfare and freeloading, they insist on their own right to freeload on the system anyway. The stock “conservative” answer to uninsured Americans is “they can always get care at the emergency room.” But who pays for that? The rest of us! Isn’t it about time that the uninsured start paying for the de facto insurance that they do have?

    JV, if this is what being libertarian means to you, then you can stick it you-know-where.

    • Frumplestiltskin

      Graychin, sticking it you know where is exactly what libertarians most secretly want, they enjoy both the sensation of being dominated with the sensation of being outraged at being dominated. I don’t know if you know this but in the movie Pulp Fiction Ron Paul had a bit part by playing the gimp, that man in the latex suit wearing chains and the zippered mouth.

  • Levedi

    Here’s an interesting case to illustrate Graychin’s point about the uninsured and underinsured causing economic problems. My roommate was run down in a crosswalk by a truck over a year ago. She lived, but now has about $100,000 worth of medical bills and permanent nerve damage. She was a college student at the time, but the mandated student health insurance that she paid for wouldn’t cover her accident. (That detail still enrages me.) The driver was an illegal immigrant with no insurance. The hospital is not going to waive her bill on compassionate grounds, or even give her a payment plan. She doesn’t qualify for SS disability because she suffers pain, but not enough to make her “disabled” under their terms. So she’s going bankrupt to get out from under the debt. The hospital will eat the bill and the cost will be passed on to the rest of us.

    Under the current system a responsible citizen goes bankrupt and ruins her credit score even after doing everything right. A good hospital swallows a massive bill unreimbursed. The costs get passed silently on to the rest of society and we wonder why our health care costs so much. And, to double back to the person who got injured, a responsible citizen goes without proper follow up care and medication because she can’t afford it and now is uninsured because she had to drop out of college. Everybody loses!

    Since my money is going to, by a very roundabout route, help pay for her care anyway, I’d rather it happen in an orderly manner under a system like Obamacare. If my roommate had Obamacare or a single payer system, she would end up with the proper care and medication she needs and the costs would have been kept lower. Plus, the taxes she pays on her income would pay back into the system, balancing out at least some of her social and financial debt.

    Oh and if anyone wants to add that she should just ask the church for help…the school that booted her is one of the biggest Christian universities in the country. They won’t give her a penny.

    • balconesfault

      I’d rather it happen in an orderly manner under a system like Obamacare.


      • PracticalGirl

        + 1

        Levidi’s post should be required reading for all who advocate that the young “don’t need” insurance, nor the protections within Obamacare that have insured 1 million more college students who can now stay on parental insurance plans that are often superior to those offered students by schools.

  • Steve D

    More reason to vote today!

    I don’t vote for President or Congress. I vote for SCOTUS.

    Again with the false dichotomies. We either force people to buy insurance or they sponge off the system. Apparently being made to face the consequences of personal decisions isn’t on the table. Nor is recovering the cost of medical care from people’s estates.

    • Graychin

      I just don’t want to be responsible for your “personal decision” not to have health insurance.

      When the truck runs over you, I’ll bet you won’t choose to “accept responsibility for your own actions” by declining care you can’t pay for.

    • ottovbvs

      “Nor is recovering the cost of medical care from people’s estates.”

      Grave robbing?

    • Primrose

      So you are saying that a young person comes in to the hospital emergency room, you’d let them die on the table if they don’t have insurance?

      What if that person is a single mom who didn’t pay for insurance so she could feed and clothe her child? Should she have neglected her child so as to live?

      What if that person did have insurance which they paid until they got fired and they had to choose between paying the rent and paying insurance? Should they also die or should they stiff the landlord?

    • think4yourself

      @ Steve: “We either force people to buy insurance or they sponge off the system. Apparently being made to face the consequences of personal decisions isn’t on the table.”

      Personal decisions? Upwards of 40 million people – 15% of the population do not have health insurance. And millions more have really bad insurance. You can blame them for personal decisions but that isn’t the whole story. Many of those have jobs (or not) that do not provide insurance, therefore they need to purchase insurance as individuals. However, the insurance companies have different standards for individuals. If you have any sort of health issue or don’t fit in their box, you’ll be denied insurance or the insurance will be at unimaginable rates:

      For example, I have had asthma since I was 6. It is well controlled with medication. The last time I had an asthma incident that required me to go to the doctor or emergency room for treatment was 27 years ago. 15 years ago, I got insurance as an individual and paid “standard rates’ (my asthma precluded me from preferred rates). later I got insurance from a company. 8 years ago, as a self-employed person I went back to the self-insurance market. I could not get anyone to cover me because of my asthma – even though it had been decades since I had a problem (I take Advair only). I finally found a carrier that would cover me at 2.5% times their normal rate with large deductibles. I took it, just in case I had an accident or something. Every year that company increased the cost of my insurance between 20% 25%. My wife and children were on a separate policy with a different company in order to contain their costs. In 2010 our family health insurance bill was $21,720 (and they raised in 2011). That doesn’t include car insurance, home insurance, life insurance, etc.

      I’m not one for big gov’t support. However, the insurance companies are taking advantage of a system to make large profits but not provide the products that society needs. If the market won’t act (and it hasn’t for many decades), then gov’t is forced to in order to “promote the general welfare”. The benefits of a national insurance program is that it will lower costs on all of us and help America become more competitive in the marketplace.

  • Demosthenes

    I of course believe all Democratic appointees will uphold all aspects of Obamacare

    First of all, if the Democratic appointees uphold PPACA it will be because PPACA is Constitutional. My guess is that everyone but Thomas will uphold PPACA, with Scalia writing a separate, dissenting minority opinion (probably joined by Roberts and/or Alito) that rules in favor of PPACA.

    Second of all, this reveals a great deal about jjv’s mindset. If Republican legislation signed by a Republican President that he felt was as obviously unconstitutional as “Obamacare” went before SCOTUS, would he expect all Republican appointees to uphold it in all its aspects?

    It is not the job of the SC Justices to be partisan hacks, that is in theory why they are appointed for life, in order to place them above the fray of partisan politics. In jjv’s mind, SCOTUS apparently only serves to validate the pre-existing agenda of the political party which appointed the Justices, and the Justices’ decisions can be expected to fall neatly along party lines. Of course this has happened before, especially in the recent past, but what I find most troubling is that jjv apparently only regards this as a problem when Democratic appointees uphold laws signed by Democratic Presidents. Snake-tongued doublespeak. The real problem is how politicized the judiciary has become, how few legal minds like Judge Silberman, i.e. deeply knowledgeable experts who can set aside personal and political beliefs to arrive at a jurisprudentially valid ruling, remain.

  • bdtex

    Libertarians’ hair is always on fire. Yet,every 4 years they struggle to find a candidate to run for POTUS that has name brand recognition.

  • jamesj

    “A Decision That Will Set Libertarians’ Hair on Fire”

    No more than the history of human civilization, the modern theory of American Constitutional Law, and the modern history of American jurisprudence already do. The fact is, these people flew into a legal claim of unconstitutionality without a full understanding of how radical and foundation-shattering their claim actually was. I know extreme Libertarians like to shatter foundations, but breaking apart the legal foundation for many popular American developments over the last 100 years is not going to be an easy sell, especially for traditionally Conservative judges. The way people use “libertarian” and “conservative” interchangeably these days is misleading. They are quite different, sometimes even diametrically opposed.

  • Chromehawk

    The answer is to create an Article V convention to amend the constitution restricting and redefining the commerce clause.

    The point of it being “We [the States ] don’t HAVE to ask the Courts, or listen to the courts, or even CARE what the courts think. We can amend the constitution and TELL the courts what the limits are whenever 38 of us agree on what the limits are.”

    Now the fastest way to do this is via the Balanced Budget Amendment.

    1 ) Something most people do not know is the closest we ever got to an Article V convention was over the BBA in the 1980s when 32 States applied for a convention.
    Those 32 applications … are still active. There is no time limitation ( read Article V ) … just get Boehner to admit that those 32 are still active and then convince two more state legislatures apply … and Congress MUST schedule the convention as soon as possible.
    ( NOTE : The Senate has no role in an Article V convention. NONE. So harry reid can sputter and fume as he has no say in the final outcome ).

    2 ) Once the convention is in force, other amendments can be added. This is termed a run-away convention.
    In fact, the only other convention like this WAS a run-away. They proposed TEN amendments.
    The first 10 amendments. What we know as the Bill of Rights.
    So, who cares about them.

    Just get Boehner to admit those 32 applications are still valid and that if he recieved 2 more he would have to schedule the convention …
    And we WILL have an added amendment regarding the scope of the Commerce Clause and the “necessary and Proper” clause.