Silberman upholds ACA mandate

In a 2-1 op for the D.C. Court of Appeals. Via.

Haven't had time to read it yet, though it appears the dissenter would've held the court lacked jurisdiction, not that the mandate was unconstitutional on the merits.

... Here's a taste of Silberman's reasoning, which finds little to appreciate in the Randy Barnett school of constitutional law:

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. The shift to the “substantial effects” doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants’ argument; its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants’ argument–that Congress’s power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. See United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 (1942) (surveying cases). Whether any “particular person . . . is, or is not, also engaged in interstate commerce,” the Supreme Court expressly held, is a mere “fortuitous circumstance” that has no bearing on Congress’s power to regulate an injury to interstate commerce. Id.

* * * a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do. Thus, when Congress finds that organized crime harms interstate commerce, and that most loan sharks are part of organized crime, Congress can regulate even those individual loan sharks who are not part of organized crime. See Perez v. United States, 402 U.S. 146, 147, 153-57 (1971). Similarly, it is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislativepower 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.

That last part about "political judgment" is what Hamilton and Madison argued was the effective check on the Necessary & Proper Clause.

... Orin Kerr has some more good snippets, for those not wanting to read the whole thing, and he observes:

Judge Silberman’s view is pretty much what I’ve been arguing since the mandate challenges were first filed, so it’s no surprise that I find this a persuasive reading of existing Supreme Court precedent. Of course, the Supreme Court is highly likely to review this issue soon, and the Justices are not bound by the implications of their prior precedents — or even the precedents themselves.

Stuart Benjamin comes out of hibernation at the VC to say that he would expect a Scalia op on this case to sound a lot like Silberman's.