After Reading Two of the Health Care Lawsuit Appellate Opinions, It Doesn't Look Good For the Republi-CONs

UPDATE: From the D.C. circuit panel majority opinion, here are "key excerpts:

'The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce. ... To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word 'activity' to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether 'inactivity' can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.

In effect, the judges are dismissing the distinction between "activity" and "inactivity" as meaningless. That distinction, of course, is the foundation of the lawsuit. The relevant issue, Silberman goes on to say, is whether the mandate affects commerce that crosses state lines. It clearly does.

Elsewhere, Silberman cites precedents giving Congress broad powers over interstate commerce, including decisions that upheld parts of the New Deal and civil rights laws:

'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. It certainly is an encroachment on individual liberty, 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. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.'"

Read The New Republic, Obamacare Wins Another Round in Court.

You might not know it, given that "rulings in support of the law generally received scant attention from the Washington Post, New York Times, Politico, and the Associated Press, while rulings against the law were literally treated as front-page news," but it is now 3-1 for Obama Care in the appellate courts.

And two opinions are worth note, the 6th circuit panel majority opinion by a former clerk to Supreme Court Justice Antonin Scalia and D.C. circuit panel majority opinion by a judge with a lengthy history of conservative legal thought, "[c]hief among them is his opinion in District of Columbia v. Heller , the case that found the District’s handgun ban to violate the Second Amendment. That opinion was upheld by the Supreme Court in a landmark 2008 ruling."

From Time, A Closer Look at Obama’s Big Legal Win on Health Reform:

"The majority opinion by a 6th circuit panel Wednesday upholding Obama’s health care reform law is a victory for the administration on its face. But to understand just how big a victory it is, you have to read the concurring opinion by Circuit Judge Jeffrey Sutton. Sutton, a former clerk to Supreme Court Justice Antonin Scalia and a powerful figure on the right wing of the 6th circuit, meticulously destroys the central and essential argument of the opponents of Obama’s healthcare law. . .

[Judger Sutton writes] a 21-page proof that the Constitution doesn’t limit Congress power to regulate inaction the same way it regulates action. First, he says, 'the relevant text of the Constitution does not contain such a limitation.' Second, distinguishing between inaction and action under the healthcare law is harder than it seems. What if someone previously had healthcare and then dropped it so he could free-ride on the system? Under the plaintiff’s own argument, it would be constitutional to make him buy healthcare because he had already 'entered the stream of commerce'. Third, precedent exists for regulating people who aren’t actively participating in a market: one of them, a case outlawing growing marijuana for personal use, was written by Scalia. Fourth, everyone agrees Congress could force someone to buy health insurance the moment they seek care at an emergency room because they would then be entering the market; 'Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind,' says Sutton. Fifth, the breadth of the challenge to the law means that some cases where it might be constitutional would be thrown out with others that the opponents say are unconstitutional: better to let the law go forward and have the individual cases come up rather than issue a broad opinion that overstates a constitutional limit. Sixth, Sutton argues, the 10th amendment protection of state and personal power doesn’t overrule Congress’ enumerated power under the commerce clause."

And from the Washington Post, The conservative judge who upheld health reform:

"The U.S. Court of Appeals for the District of Columbia Circuit has just ruled the health reform law constitutional in a 2-1 decision . . . What’s more notable than the verdict, however, is its author. Justice Laurence Silberman, who wrote a full-throated defense of the health reform law, has a lengthy history of conservative legal thought. . .

What makes this even more notable is Silberman’s previously rulings, which have been both influential and conservative. Chief among them is his opinion in District of Columbia v. Heller , the case that found the District’s handgun ban to violate the Second Amendment. That opinion was upheld by the Supreme Court in a landmark 2008 ruling, the first time the court had taken up the issue of whether the Second Amendment protects rights to bear arms for self-defense.

What Silberman wrote in today’s opinion hews very closely to the legal argument that the Obama administration has pushed in the courts: The federal government has a constitutional right to regulate an individual’s choice not to purchase insurance, because that decision has an economic effect on others. Here’s what Silberman writes on that issue:

'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.'

Silberman goes on to compare the individual mandate to issues of civil rights. He concedes that the mandated purchase of health insurance 'certainly is an encroachment' on freedom, but 'no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race.'"

Read the decisions and some of the other court documents.