Right-wingers mostly silent after notoriously conservative judge upholds ObamaCare

For many months now, conservative pundits and their Tea Party acolytes have been given to self-assured declarations that the Affordable Care Act, sometimes called ObamaCare, is patently unconstitutional on its face.

They’ve pretended that only wild-eyed liberals could disagree with that assessment. They’ve said that ObamaCare’s individual mandate requiring Americans to purchase health insurance flies in the face of the most fundamental principles on which this nation was founded. And they’ve suggested that this truism should be obvious to all but the most dastardly statists among us.

Case closed, they’ve said. It’s only a matter of time before the Supreme Court rules ObamaCare a nullity, they’ve said.

Ah, but suddenly these voices of patriotic constitutionalism have been rendered strangely silent. I’ve searched the Internet in vain this morning for a massive right-wing outcry against yesterday’s ruling by a three-judge panel on the D.C. Circuit Court of Appeals upholding the individual mandate in ObamaCare. The umbrage I expected has been almost entirely non-existent. There’s been a whimper here and a muted lament there, but nothing even remotely resembling vehemence.

Why this silence, you ask?

Well, here’s the deal: The majority opinion in that D.C. court ruling upholding the individual mandate in ObamaCare was written by the most reliably right-wing jurist this side of the Supreme Court’s conservative bloc. He’s Laurence Silberman (above), and he was appointed to the appellate bench by none other than Ronald Reagan. No wonder, then, that haters of ObamaCare had expected that he would see things their way.

But here’s what Silberman said:

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…

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.

And, to add insult to injury, Silberman said those who see the individual mandate in ObamaCare as a violation of some fundamental rule against such governmental interference in the marketplace “cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent.”

Mind you, Silberman’s opinion does not necessarily portend a similar ruling by the Supreme Court. But it should at least suffice to refute the notion among self-styled constitutional experts on the political right that the individual mandate in ObamaCare is so clearly and inarguably a violation of our national charter.




  1. Silberman is clearly deranged and should step down immediately.

    By his own admission, the Commerce Clause has absolutely no limitations. Does anyone in their right minds really think that’s what the Founding Fathers intended? If government can force you into a private contract it can do anything it damn well pleases in the name of the “greater good.” Its sheer insanity. By this measure governments can force everyone to buy a gym membership, eat broccoli twice a day, or for that matter control your diet entirely. After all, if you are forced to eat healthy and forced to exercise, that means fewer doctor visits, and lower Medicare and Medicaid costs, right?

    Welcome to the United Socialist States of America.

    Fortunately, the Ohio voters got it right (on mandates anyway, not unions) If the Supreme Court declares the insurance mandate Constitutional, you can expect the vast majority of States to also take up similar ballots. This is far from over.

  2. Carol Foster

    Why is it when the court rules in favor of the otherside, Conservatives declare we’ve become the United Socialist States of America?

    They want to use the court system as a remedy, but then don’t accept the decision. Instead they begin calling names.

    No we are still the United States of America and you shouldn’t hurl insults at our nation for not agreeing with what you want on this one item. One side wins and one side doesn’t and that’s the system you claim to love until you are on the side of the losers.

    Don’t forget the red, white, & blue belongs to all of us even when we don’t agree.

  3. Carol – This is not a matter of “the other side.” Its a matter of good vs. evil. He-man vs. Skeletor. Spider-man vs. The Green Goblin. Batman vs. The Joker. (With government Obviously being the “The Joker” in this case)

    If government can exert itself to have that much control over our personal freedoms and liberty, then we are indeed Socialist. It means government has unlimited control over the private sector to control the production of goods and services. Why are you so insulted by this? If a mandate forcing everyone to buy something is what you want, then accept it. Raise your Socialist flag high and the air and be proud! No need to be take it personally or as an insult.

    Look, its simple. If I want to die peacefully in my own home of natural causes without seeing a doctor or going to a hospital that is my right. I shouldn’t have to buy private insurance for something I have no intention of using. Yes, the vast majority of people will need to see a doctor at some point in their lives, and I certainly encourage everyone to buy health insurance, but that’s not the point. Its all about preserving personal liberty and freedom. An individual mandate takes those freedoms away.

  4. Liberals believe in the freedom of choice, correct? Isn’t it our choice on how we want to die? Wasn’t it the decision of Terri Schiavo’s family to make individual choices of freedom? Then why the double-standard on mandates?

    I don’t get politics sometimes. Mandates were originally a Republican idea, but fortunately, they came around and saw the light that they were bad, while Democrats embraced the idea. Yet Republicans were wrong on forcing people to live if they choose not to. There is no consistency in any of this.

  5. Michael Anthony

    Neftali — eloquent arguement about the horror of government exerting itself “with that much control over our personal freedoms and liberty”. Based on that, I of course assume you fully support the repeal of the infamous 1996 Defense Of Marriage Act, yes? What could be more intrusive?
    Michael Anthony

  6. Michael Anthony – Actually, I do fully support the repeal of the Defense of Marriage Act. Obama did the right thing. Government has no business deciding who can and cannot marry. The same principle goes for insurance mandates. Government shouldn’t be forcing this on you.

  7. Neftali: It’s silly of you to argue that Silberman “should step down immediately” just because he’s written an opinion with which you disagree. His interpretation of the Commerce Clause in this case is consistent with certain interpretations cited in previous Supreme Court cases and at odds with certain others. But then, that’s not uncommon in appellate court decisions.

    You ask whether “anyone in their right minds” thinks that Silberman’s view of the Commerce Clause is “what the Founding Fathers intended.” Well, yes. As I say, Silberman’s view is not necessarily at odds with the view offered in innumerable previous cases. It’s a controversial view, to be sure, but then many court rulings are controversial, which is why they’re not all unanimous. To pretend that the Commerce Clause lends itself to easy interpretation is nonsense. The Clause has always been a bone of contention.

    The Commerce Clause (Article I, Section 8, Clause 3) grants to Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Sometimes, the courts combine the Commerce Clause with the Neccesary and Proper Clause (Article I, Section 8, Clause 18), which gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer there of.”

    Sometimes intepretations of those combined clauses butt up against intepretations of the states’ rights referred to in the 10th Amendment. Again, that’s why we have courts to argue about such matters. Moreover, court interpretations of these matters have tended to evolve over the years, sometimes drifting leftward and sometimes rightward, depending on the tenor of the times and the makeup of the court.

    My intent in this post is to point out that the opinion written by Silberman shows that the constitutionality (or lack thereof) of the individual mandate in ObamaCare is not the slam-dunk some conservatives have suggested it is. If Silberman’s view in this matter was the same as yours, I would not have suggested that he step down. Rather, I would have ascribed it to the ordinary give-and-take we so often see in court disputes over acts of Congress.

    You’re free to say that Silberman’s view is at odds with what the Founding Fathers intended, but that doesn’t make it so. We have courts and judges to decide what the Founding Fathers intended, and they’re not always going to be in complete agreement. I think the Founding Fathers expected that to be the case.

Leave a Reply

Your email address will not be published. Required fields are marked *