Leading Conservative Federal Appeals Judge Says Case Against Health Reform Has No Basis In ‘The Text

[pampango]

of the Constitution’

When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh — the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.

And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion that absolutely obliterates any suggestion that the ACA is not constitutional:

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.

When a federal judge tells you that your argument has no basis in the text of the Constitution, it is a good sign you don’t belong in court. When he compares your argument to claims that the federal ban on whites-only lunch counters are unconstitutional, it’s an even better sign of how deeply radical your argument has become. When that judge is Judge Laurence Silberman, a man who has stood at the pinnacle of conservative judicial thinking for decades, it is about as good a sign as you can hope for that the Supreme Court is not going to like your argument either.

http://thinkprogress.org/justice/2011/11/08/364055/leading-conservative-federal-appeals-judge-says-case-against-health-reform-has-no-basis-in-the-text-of-the-constitution/

[yodermon]

1. WOW this is big. Hope MSM picks it up, at least Rachel. n/t

[happyslug]

2. The writer is calling the demand that everyone has health insurance a TAX

And given Congress has a broad authority to TAX, and any Tax by Congress is Constitutional (With the exception of a head tax NOT based in the Census). The requirement that people have health insurance is a TAX even if Congress does NOT call it a Tax. In the case of the New Health law, the writer takes the position that everyone is subject to the tax imposed on people without health insurance, and then can avoid that tax by having the required health insurance. Thus the law is a Constitutional tax system NOT a grant to private individuals.

I have some problems with this view, but if it is adopted by the Supreme Court, it can lead to single payer. My objection is the tax approach to this issue is that the higher income tax rate imposed on people without health insurance does NOT itself provide Health Insurance. Thus NOT having health insurance is a CRIME NOT a deduction from Income taxes.

I would feel better about this approach if the Federal Government would have to provide health care with the money from the increase income tax money, for then it is clearly a tax subject to a deduction for any costs incurred that would reduce government expenditures the Tax is designed to cover. At present that is NOT the case, the increase income tax rate is a PUNISHMENT for NOT have private health insurance.

Up to the Supreme Court sooner or later.