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 Motel. Wickard 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!