DC Circuit Judge Acknowledges "Discomfort" With ObamaCare's Individual Mandate, Rules in its Favor Anyway

A D.C. Circuit Court of Appeals ruled 2-1 in favor of ObamaCare's individual mandate to purchase health insurance despite acknowledging "discomfort" with the government's inability to suggest meaningful limits on congressional power under its interpretation of the Commerce Clause. The decision, written by Reagan appointee Lawrence Silberman, admits that any limits on congressional power to control or compel commerce are not apparent to members of the court's majority, either.

From the ruling:

The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.  But the Government does stress that the health care market is factually unique; there are few other markets, it says, where participation is a virtual certainty, or where declining to buy a product disproportionately causes a national economic problem.

…We acknowledge some discomfort with the Government's failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.  

The key question is this: If ObamaCare's mandate to purchase health insurance is constitutional, are there any limits on congressional power under the Constitution's Commerce Clause? So far, the administration's response has been something to the effect of, "Um. Well. But. Um…the market for health care is unique." Which doesn't really answer the question. As the Cato Institute's Ilya Shapiro notes, despite numerous opportunities, the government's legal team has yet to articulate to any court "what it cannot do under the guise of regulating interstate commerce." 

In some ways, today's decision changes very little about the path forward for the various constitutional challenges to ObamaCare. As soon as two appeals courts split on their rulings, the Supreme Court was virtually certain to take up the case; that's still true today.

But as Adam Serwer points out at Mother Jones, the ruling highlights the government's inability to satisfyingly articulate limits on congressional power on the commerce clause, which may help tip Supreme Court votes against the mandate. Serwer points to UCLA law professor Adam Winkler's argument that asking the government to define such limits amounts to a "gotcha question" designed to steer judges away from considering precedent. On the contrary, for many critics of the mandate, congressional power—and its limits (or lack thereof)—are the heart of the matter.