DC Circuit Upholds Affordable Care Act

Posted on November 8, 2011 by Kevin S. Willis

DC Circuit upholds Affordable Care Act. Was there any doubt? I thought it would be upheld, myself.

Link above goes to a PDF of the opinion.
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Mark added:  I could not open that link, so I am adding this one to Volokh, which in turn also links to the opinion.

http://volokh.com/2011/11/08/silbermans-opinion-as-template/

Recall that Judge Silberman wrote the reversal of the NLRB case two weeks ago that said NLRB could no longer treat union discipline of a member who reported a safety violation  even ‘though he was under a duty to do so as a per se unfair labor practice.
He is a very conservative senior judge, and a mentor to Thomas.  Benjamin writes that his opinion is a template for the conservatives on the Court to uphold the ACA.

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2 Responses

  1. Unknown's avatar
    Mike, on November 8, 2011 at 6:39 pm said:

    KW:Was there any doubt?Actually, with Silberman and Kavanaugh on the panel, I thought there would be a good chance that they would rule for the appellants. Shows what I know. Silberman didn't buy the "activity/inactivity" argument and it looks like Kavanaugh thought the mandate is a tax (so the court didn't have jurisdiction).

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  2. Unknown's avatar
    quarterback, on November 10, 2011 at 3:51 pm said:

    If anyone is still looking at this, I wanted to make one brief comment that perhaps will spur further discussion.Many are touting Silberman's opinion as a bellether for Scalia and SCOTUS, because he is a "conservative." I am not predicting a result, but I think these claims are quite overstated.As to Silberman's opinion, one thing that strikes me is that he relies on finding no precedent that makes an activity/inactivity distinction. This is debatable depending on how you interpret it, but what I find striking is the notion that there has to be an existing precedent explicitly making that distinction in order to recognize it now. What about the words of the Constitition itself? That's supposed to be what we are interpreting here. I find this reasoning of Silberman to be little more than a kind of question begging or circular thinking.

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