Conservative Judge Obliterates Challenge To Obamacare

Yet another court has sided with the Obama administration, ruling the Affordable Care Act constitutional. This time it was the United States Court of Appeals for the D. C. Circuit with harsh words for those opposing the law coming from conservative icon and ally of Justice Clarence Thomas Laurence Silberman.

Previous to this decision Silberman was most noted for authoring the decision that overturned the District of Columbia’s handgun ban. Silberman, and fellow conservative Brett Kavanaugh, rejected the challenge as “utterly meritless” on two separate, but equally compelling grounds.

Judge Kavanaugh dismissed the challenge on the grounds that the court had no jurisdiction to hear the case while Judge Silberman authored a blistering opinion that should put to bed any idea that opponents of the law have a constitutional leg to stand on. Judge Silberman noted that the challengers could not find any support for their position in either the Constitution or Supreme Court precedent. From the opinion:

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.

What is deceptively brilliant about Silberman’s opinion is that it returns common sense to a conservative read of the Constitution and to the understanding of the interplay between individual liberty and the necessary functions of governments. That today’s conservative movement won’t be able to see that, or are politically unable to concede such a point, shows just how intellectually bankrupt the movement has become.


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Photo from steakpinball via flickr.


Frances C.
Frances C5 years ago

Lindy and Shirley, You both have made some good points. Every child deserves a good education. Every human being deserves health care. Our family have all went to public schools with mostly good to great teachers. We all came out with a good education. I have one grandson that was moved to a gifted class. We have a good health care plan which does not include intervention from any health care exec that works for an insurance company.

As for the Netherlands I was just there a couple of months ago, as well as in Germany, and Austria...they are almost all very happy with there health care system.

Good for Michelle Obama for bringing up the problem of obesity. I have been complaining for years about the fattening junk food and soda's sold in schools for lunch. She has encouraged the school system to get healthier foods and out the junk. The reason people, adults and children are obese is that they make the choice to eat too much and don't walk enough.

There are several ways to cut down our health care costs that comes from individuals. Stop smoking, exercise, walking, eat less and eat better foods...more fruit, nuts, vegetables, and less meat. Small amounts of beef and chicken, and more fish. Cut way down on the sugary desserts, don't keep candy in the house as children are very tempted when it is in front of them.

The President's Health Care Act is a good step in the right direction. It will take a couple of years until it is fully imple

Lindy E.
Belinda E5 years ago

@Roger B - that's...dismaying to say the least. What reason did the health care workers give for criticizing your wife's choice of salad??

Lindy E.
Belinda E5 years ago

Shirley M makes a good point: is there really a difference between universal childhood education, and universal health care?

For ages we have had tax-supported public schools. Public schools have traditionally been free and mandatory; higher education is optional and (more or less) costly.

Perhaps we should also have two or three levels of health care: preventive care, like immunizations and prenatal care and annual checkups free (that is, tax-funded) for everyone; treatment for preventable diseases require a copay (provides some incentive to pay attention to your health); and for ultra high-tech, ultra-expensive diagnostics or treatment, you need to have a good insurance policy or be very wealthy. This would ensure that everyone has a reasonable chance to stay healthy and productive, and new diagnostics and treatments would continue to be developed because there are some people willing and able to cover the cost. (Remember that the costs of new technology always goes down and the quality goes up, over time, so that new technology will eventually trickle down to the publicly-insured - but only if it's developed in the first place.)

Just the bare bones of an idea; comments welcome.

Shirley Marsh
Shirley Marsh5 years ago

Amazing! Never thought I'd see the day when ensuring the best of health care for all its citizens would be a black mark against a government or a country! Diane O listed countries where apparently a universal health care system is not working. She left out the Netherlands where the citizens are more than happy to pay higher taxes to support great health care and education; please note, not 'free', but paid for by the people through their taxes. Is it a bad thing to ensure ALL our children get the best in education; that ALL our citizens are cared for equally when it comes to health? I would have thought that would be something to work towards, not retreat from.

As for 'dusting off' the free market system; is more of the same (GFC) something to work towards? Is there no room for a free market system that also embraces fiscal and social responsibility?

Where are the people of vision? Everything changes; why not for the better?

Diane O.
Diane O5 years ago

The states don't have to accept ObamaCare and therein lies the power of the states. 26 states out of 50 have joined the multi-state lawsuit AGAINST Obamacare. I direct your attention again to the financial crisis most of the blue states are in..all run by democratic governors. Republican governors share the majority of states who have cut spending across the board and have a surplus. Republican governors KNOW that ObamaCare will eventually put them in bankruptcy.

Know your facts. And while you are at it look at Greece, Italy, Spain, Portugal and France. You'll get the picture.

Frances C.
Frances C5 years ago

Get the insurance companies out of our health care. Make it illegal for insurance exec's to give millions to Congress. I have worked in a hospital for years. Way too many people who don't have insurance use the emergency room for their health care as they don't get preventive care. The E.R. is the very most expensive way to give care. Other people die from cancer and heat attacks because they don't have health care insurance.

The health care mandate is necessary or many people will just take the free ride and use the E.R. Every one must pay for their health care because we are not going to let people die on the streets, we will keep paying for them. All people young and old could get sick, a disease or be in an accident at any time.

Frances C.
Frances C5 years ago

Michael W. You are absolutely right. We do not need a middle man in our health care. The insurance executives take millions of dollars in profits and bonuses for themselves, that's a fact, they add nothing to health care, nothing. They deny care whenever possible to keep their bottom line very lucrative. I have experienced that in the past.

Kaiser Permanente is a non profit hospital and health clinics. Once I joined it my health care costs were lowered, my care was better. The doctors did not have to check with a insurance exec. to get the OK to treat my condition. I have been with them for many years, and would never go back to a insurance company to pay them to let me go to a physician. We really do need single payer health care. Every one deserves to have health care.

Perhaps Keith should write a book. I have to flash by a long litany of essays to get to the blogs that are readable.

Michael W.
Michael W5 years ago

Keith, the only healthcare that will serve the people, not the shareholders is one that is not-for-profit. That does not mean it needs to be government run, but as someone once, said, you cannot serve two masters and that is what for-profit insurance does....
Same goes for banks vs. credit unions, even though I would argue that insurance has a greater duty to "serve" its clients first before serving themselves or their shareholders....

joe lee C.
Joseph L c5 years ago

We heard how Roger described the Democrats.

Well, the Repbulican Party is a collection of selfish people, while enjoying the fruits of labor of lower income folks and the protection and comforts of the locality, would not spare an extra dime to improve the welfare of fellow Americans.

Roger B.
Roger Bird5 years ago

Frances, I noticed that the very first thing that you said about Obamacare is that you needed something it. This is the typical liberal response. Your first issue was not whether it is good government. The Democrat Party is a collection of people who want something from the public teat.