Tuesday, November 8, 2011

BREAKING NEWS: D.C. Circuit upholds ACA

The D.C. Circuit has just issued an opinion upholding the individual mandate in Seven-Sky v. Holder. You can find the opinion here.

Judge Silberman wrote for a 2-0 majority. Judge Edwards concurred. Judge Kavanaugh concluded there was no jurisdiction.

More shortly.

UPDATE: Here is a quick outline of Silberman's opinion for the Court:

1. The Anti-Injunction Act does not deprive the court of jurisdiction because Congress did not intend the AIA to "cover penalties unconnected to tax liability or enforcement."

2. There is no "activity"-"inactivity" distinction in the text of the Constitution, or in the Supreme Court's precedents. If anything Wickard v. Filburn comes very close to authorizing the regulation of what the plaintiffs characterize as "inactivity."

3. "Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause." (p.34)

4. "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." (p.36)

Of course, the votes that really matter are those at the Supreme Court. In a sense, this decision merely operates as an additional brief for the justices to read in making their decision this spring. But I think it is hard to overestimate the importance of another highly esteemed Republican jurist (joining Judges Sutton and Marcus) writing a detailed, thoughtful opinion that upholds the mandate. I am making no comment on the merits here, but just a political observation. Judge Silberman's decision alters the political dynamic, and potentially substantially.

UPDATE 2: Judge Kavanaugh authored a 65-page (!) dissent concluding that the Anti-Injunction Act deprived the court of jurisdiction.