The influential Court of Appeals for the District of Columbia has issued an opinion affirming the Affordable Care Act (ACA) constitutional. In itself, this is not surprising, as several other courts have done so. What is surprising is that the Court's opinion was written by Republican favorite Laurence Silberman. The conservative Reagan appointee notes that the "activity/inactivity" distinction hatched to argue that the individual mandate violates the Constitution has no basis in the Court's precedents, and under those precedents the ACA is clearly constitutional:
Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce. [...] ...we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.
Silberman deserves credit for his willing to acknowledge that the "activity/inactivity" distinction is bunk. The only way to reach the conclusion that the ACA is unconstitutional is to go back to the anachronistic 19th century conception of the Commerce Clause, under which massive multinational corporations were not considered to be engaged in "interstate commerce" when they manufactured goods for export and Congress lacked the power to regulate child labor. These precedents were discarded for good reason, and under current precedents Congress was well within its authority when it passed the Affordable Care Act.
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