Critical Condition

Silberman’s Lazy Endorsement of Obamacare’s Individual Mandate

Yesterday, the U.S. Court of Appeals for the D.C. Circuit handed down its decision in Seven-Sky v. Holder, the latest of the Obamacare constitutional challenges making their way up the federal appeals court system. In a 2–1 ruling, the court upheld the health law’s mandate that forces all Americans to purchase health insurance. The ruling is notable for two things: one, that Laurence Silberman, a highly regarded judicial conservative, wrote the majority’s opinion; two, how important he shows it is for conservatives to overturn Wickard v. Filburn, the original sin of left-wing jurisprudence.

Judge Silberman’s 32-page opinion can be divided roughly into two parts. The first half is devoted to agreeing with the vast majority of other judges that the individual mandate is a penalty, not a tax, and therefore that the parties do have standing to sue. (If the individual mandate is a tax, under the Anti-Injunction Act, parties don’t have standing to sue until the tax goes into effect in 2014.) The second half reviews the constitutionality of the mandate itself.

I wrote in September that oral argument in this case pointed the way to the mandate’s defeat. As Randy Barnett reported from the hearing, “The low point for the government was when Judges Kavanaugh and Silberman pressed counsel for about 10 minutes for a single example of any economic mandate that would be unconstitutional under the government’s theory of constitutionality. To their evident frustration, she refused.”

Silberman notes this remarkable development in his ruling. “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles,” he writes. “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.” Silberman charitably “acknowledge[s] some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates,” but such limits aren’t obvious to him either:

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.

Worst of all, Silberman gets suckered by the “health care is unique” trope: that someone because “virtually everyone will enter or affect” the health care market, the framers of the Constitution meant to give it an exception to the traditional understanding of limited government:

It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.

But the core of Silberman’s argument is one that we’ve seem time and time again in this case: that Supreme Court rulings since the New Deal have already granted Congress virtually unlimited power through the Commerce Clause. Specifically, in the 1942 case of Wickard v. Filburn, the Supremes ruled that Roscoe Filburn could not grow wheat on his own farm for his own animals’ consumption, because doing so would frustrate the federal government’s scheme for wheat price controls.

The Supreme Court endorsed Wickard as recently as 2005, when in Gonzalez v. Raich, a 6–3 majority found that the federal government could bar Angel Raich from consuming home-grown medical marijuana, despite the fact that such marijuana was legal in the state of California.

After a lengthy review of these precedents, Silberman concludes that the individual mandate is not out-of-line with previous, similar Congressional actions, such as the Civil Rights Act of 1964. “It certainly is an encroachment on individual liberty,” he writes, “but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

This gets me to a point that has gotten too little attention in the coverage of the Obamacare litigation: the central importance of Wickard v. Filburn to the pro-mandate cause. The Supreme Court has twisted itself into a pretzel in order to justify Congressional intrusion into previously local affairs. While conservative judicial activists have justly focused on Roe v. Wade as a “litmus test” of judicial conservatism, it’s high time that conservatives also demand that judges commit to overturning the injustice done to Roscoe Filburn.

Avik Roy — Avik Roy is the President of the Foundation for Research on Equal Opportunity (, a non-partisan, non-profit think tank.

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