Tuesday, November 8, 2011

Susan Seven-Sky v. Holder

The D.C. Circuit has issued a ruling upholding the constitutionality of the individual mandate of the Affordable Care Act (the federal version of Romneycare). The opinions are here. Two interesting features of the majority opinion: (1) it was authored by Judge Lawrence H. Silberman, a very conservative jurist appointed by President Reagan; and (2) it relies heavily on the precedential value of that old New-Deal chestnut, Wickard v. Filburn, 317 US 111 (1942), in which the Court ruled that the federal government could regulate, under the Commerce Clause, wheat grown by a farmer for his own consumption.

Perhaps I'm overly cynical, but I wonder whether Judge Silberman, who expressly notes in his opinion that the Supreme Court will ultimately decide on the constitutionality of the individual mandate, was merely teeing up Wickard v. Filburn, hoping that the Supreme Court might strike it down along with the individual mandate. The Roberts Court certainly has not been hesitant to overrule well-established Supreme Court precedents extending back many decades. See Citizens United.

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