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.