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Conservative Appeals Court Judge Writes Opinion Upholding Health Law

Nov 8, 2011
Originally published on November 8, 2011 10:15 pm

An appeals court judge appointed by President Ronald Reagan just wrote an opinion affirming the constitutionality of the federal law overhauling health care.

That makes three appeals court decisions in favor of the law and one against, if you're keeping track.

But the 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.

The 2-1 ruling by the court affirms the health insurance mandate at the core of law, finding that it's consistent with Congress' constitutional authority to regulate interstate commerce.

Starting in 2014, most Americans will have to show they have health insurance coverage or pay a financial penalty.

Judge Harry Edwards, appointed by President Carter, voted with Silberman to uphold the law. Judge Brett Kavanaugh, appointed by President George W. Bush, dissented, saying the court couldn't rule on a tax-related issue (the penalty for a lack of insurance would be levied along with federal taxes) until the tax had been collected.

Silberman's opinion acknowledged that "a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power" and explains why legislators hadn't gone that route before.

While a mandate "certainly is an encroachment on individual liberty," he continues, it's no more intrusive than requiring hotels and restaurants to serve customers without regard for race.

"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," the decisions concludes.

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And I'm Guy Raz.

Today in Washington, a federal appeals court held the constitutionality of last year's health law, specifically the requirement that nearly every American have health insurance. It's the second time a prominent conservative appeals court judge has written the majority opinion upholding the law.

And as NPR's Julie Rovner reports now, backers hope these rulings influence conservatives on the Supreme Court as it prepares to take on that matter.

JULIE ROVNER, BYLINE: Today's case from the Washington, D.C. circuit is actually the fourth to be decided by a U.S. appeals court on the question of whether Congress can require most Americans to have health insurance starting in the year 2014. And Judge Laurence Silberman is the second prominent Republican appointee to answer yes to that question, says Elizabeth Wydra of the Constitutional Accountability Center.

ELIZABETH WYDRA: Judge Silberman ruled that Affordable Care Act and the minimum coverage provision, or the individual mandate, as it's known, is constitutional under the commerce clause power granted to Congress by the Constitution.

ROVNER: Now, this case is probably not the one the Supreme Court will consider. In fact, the justices are expected to meet this Thursday to discuss whether they'll take up one of the other cases currently before them. But the D.C. case is expected to be important for other reasons, says Ian Millhiser. He's with the liberal think tank the Center for American Progress.

IAN MLILHISER: It's influential because the D.C. circuit, which is frequently called the second highest court in the country, it's influential because it's Judge Silberman, who is one of the most well-regarded conservative judges on the D.C. circuit.

ROVNER: Silberman, an appointee of Ronald Reagan, also served in the Nixon and Ford administrations. And during his long judicial career, he's written several notable decisions that are dear to conservatives' hearts, including one striking down the District of Columbia's ban on handguns.

But Elizabeth Wydra, of the Constitutional Accountability Center, which supports the health law and its mandate, says this one probably won't make conservatives quite so happy.

WYDRA: Here you have one of the most important conservative judges telling the Tea Party that their idea of a limited federal government, without the power to address national problems, has no relation to our actual Constitution itself.

ROVNER: Backers of the law hope that Silberman's opinion, along with that of Judge Jeffrey Sutton, a George W. Bush appointee, will help influence some of the conservative members of the Supreme Court. Sutton wrote the decision upholding the insurance requirement in the Sixth Circuit in Cincinnati.

But Matt Staver of Liberty Counsel isn't so sure. He argued one of the cases challenging the law.

MATT STAVER: I don't think these particular decisions, because someone is appointed by a particular president, is going to ultimately affect them. What will affect them however, obviously, is the reasoning and whether they agree with the reasoning.

ROVNER: If the Supreme Court, as expected, decides that its members-only conference Thursday which of the health care cases it will here later this term, it could make that decision public as soon as next week.

Julie Rovner, NPR News, Washington. Transcript provided by NPR, Copyright NPR.