Press "Enter" to skip to content

ObamaCare Now 3-1 in Appeals Court; Reagan Appointee Affirms

Last updated on 2011.11.11

It must hurt to be Tea Party right now. Just a couple months old, the Occupy Wall Street movement is steering public discourse at least as effectively as the Tea Party did in its nascent months. (Quick Google check: "Occupy Wall Street" generated 25,500 News search results last night; "Tea Party," 16,900.) Nationwide, conservatives had a relatively bad day at the polls yesterday. The GOP presidential candidates who best fit the Tea Party tenor are all failing to stave off the inevitable Romney-Obama matchup.

And on top of the eventual nomination of the progenitor of RomneyCare, Tea Partiers now see a conservative judge affirming the constitutionality of ObamaCare:

...[T]he latest decision written by Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia, could shift the prospects for challenges against the law, which are expected to reach the Supreme Court within months.

"If someone like Judge Silberman, who is among the most conservative judges in the country, is willing to say that this case has no merit, I think it's a very very good sign that some of the conservative justices on the Supreme Court are going to break ranks as well," Ian Millhiser, a policy analyst at the liberal think tank Center for American Progress, told NPR [Scott Hensley, "Conservative Appeals Court Judge Writes Opinion Upholding Health Law," NPR: Shots, 2011.11.08].

The other conservative on the D.C. Appeals Court, G.W.-Bush appointee Brett Kavanaugh, dissented, but he offered no fodder for the conservative cause. Keeping mum on the merits, Judge Kavanaugh simply said the court can't rule on a tax issue until the tax (in this case, the penalty for not buying health insurance) has been collected (under ObamaCare, starting 2014). Judge Kavanaugh peeks out from under this caution to suggest what could become a conservative defense of ObamaCare:

This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now. Courts naturally should be very careful before interfering with the elected Branches' determination to update how the National Government provides such assistance [Judge Brett Kavanaugh, dissenting, Seven-Sky v. Holder, No. 11-5047, 2011.11.08, pp. 64-65].

Judge Kavanaugh makes ObamaCare sound like a far cry from the Socialism! that the flagging Noem-lovers out there insisted it was (and that I wanted it to be!). If ObamaCare really does represent a shift toward privatization, Justices Scalia, Thomas, Roberts, and Alito ought to love it... and maybe I ought to sign up with Kristi and the Tea Party to fight for its repeal!

ObamaCare (and yes, do please call it that) is now 3-1 in the appeals courts... the same ratio by which Mitt Romney says folks in Massachusetts like RomneyCare.

Update 2011.11.11 06:05 MST: More cause for Tea Party indigestion: big losses in local Montana elections.


  1. Ken Blanchard 2011.11.11

    Cory: I note that the news stories about the OWS movement include a lot of crime and violence incidents, and a few mention of rape shelters, so I am not sure whether the Tea Party people are really hurting. I also note that the "relatively bad day" for the GOP included an overwhelming vote against ObamaCare in Ohio.

    As for the Appeals Court decision, you may want to hold your applause. Judge Silberman based his decision on Wickard v. Filburn. In that case, the Court held that an Ohio farmer couldn't grow wheat above his government mandated quota even for his own consumption.

    Do YOU believe that the Federal Government can prohibit a farmer, or you or me, from growing food to eat? Of course, that doesn't reach the point of the healthcare mandate, does it? Could the Federal Government compel a farmer to purchase wheat or to grow more wheat than he wants to? Forgive me, but that doesn't sit well with your sudden concern for property rights in your Keystone posts.

    Silberman may have laid a trap for you. If so, you have been caught.

  2. caheidelberger Post author | 2011.11.11

    My "sudden" concern? I've been fairly consistent on that issue; that's what got me interested in TransCanada and the Keystone pipelines in the first place.

    Wickard v. Filburn: interesting precedent, but a very different issue from eminent domain. The Mississippi vote was about protecting landowners from the predations of other private parties. Wickard is about preventing my using my property in a way that has harmful effects on society.

    Wickard does not appear to say that I cannot grow food to eat. It says I cannot grow more food than the production quota. I can eat it, sell it, make art and tourist attractions out of it; I just can't grow more than X of it. As for compelling purchase or production, your questions lack necessary detail. I need to know why the state would compel purchase or production of a specific good or service. If you're talking an arbitrary order that everyone buy a sack of wheat, then sure, that's silly. If you're talking a law requiring the purchase of some specific item to protect the general welfare (like ordering everyone to procure and maintain a good musket and a couple sacks of powder and shot in case the Canadians invade), then we may have a case.

    I'm not sure I like Wickard v. Filburn, but I'm not convinced it is the cause for alarm that National Review thinks it is.

    Ohio vote: more harmless and frustrated Tea Party symbolism, with no more effect that Kristi Noem's sole vaunted "accomplishment" of voting to repeal ObamaCare back in January.

Comments are closed.