Political Animal


November 08, 2011 12:35 PM Conservative appeals court judges side with Obama on health care

By Steve Benen

Every bit as interesting as the Obama administration’s big win today in a case challenging the Affordable Care Act are the judges who agreed with the White House’s reasoning.

A conservative-leaning panel of federal appellate judges on Tuesday upheld President Barack Obama’s health care law as constitutional, helping set up a Supreme Court fight.

A panel of the U.S. Court of Appeals for the District of Columbia issued a split opinion upholding the law. The court agreed to dismiss a Christian legal group’s lawsuit claiming the requirement that all Americans get health insurance is unconstitutional and violates religious freedom.

After five separate federal district courts heard cases on the constitutionality of the law, three appellate courts have now considered the health care law on the merits. The 6th Circuit Court of Appeals ruled in June that the Affordable Care Act is perfectly constitutional, rejecting conservative arguments out of hand. In August, the 11th Circuit Court of Appeals reached the opposite conclusion.

But today’s ruling from the D.C. Circuit does more than just break a rhetorical tie. It’s a major defeat for the right, in part because of the court’s role — the D.C. Circuit is generally considered the most important federal bench below the U.S. Supreme Court — and in part because of the judges who heard the case.

This legal challenge was brought by radical TV preacher Pat Robertson’s American Center for Law and Justice, which insisted that Congress does not have the power to compel Americans to purchase health care coverage. Judge Laurence Silberman, who wrote the ruling, rejected that argument.

When conservatives saw that Silberman would hear the case, they probably felt a degree of optimism. After all, the Reagan appointee has a well-deserved reputation for being one of the most right-wing jurists on the federal appeals bench, described by some court observers as “a biased judge with a hair-trigger temper and a thinly veiled partisan tint to his opinions.” Michelle Goldberg had an excellent report several years ago identifying the judge’s role in decades of far-right schemes, from the “October surprise” of 1980, to the Iran-contra trials, to the character assassination of Anita Hill, to the impeachment of President Clinton.

And even he didn’t agree with the argument against the Affordable Care Act.

This led more than a few legal observers to note this morning that if the right can’t convince Silberman, then the Obama administration’s chances of winning at the U.S. Supreme Court have improved considerably.

I’d add, by the way, that this morning’s decision was a 2-1 ruling, but the dissenter, Judge Brett Kavanaugh, a former George W. Bush aide, didn’t decide on the merits, but rather, said the question shouldn’t be considered until after the individual mandate takes effect in 2014.

Here’s a copy of the ruling. I’ll have more on this later in the afternoon.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.


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  • ex-curm on November 08, 2011 12:37 PM:

    The headline is not totally accurate: One conservative appeals court judge sided with Obama, but the headline says "judges"

  • T2 on November 08, 2011 12:53 PM:

    2-1. Two to One. Two = plural=Judges

  • c u n d gulag on November 08, 2011 12:55 PM:

    I think this definitely qualifies as a "WHODATHUNKIT?!?!"

  • June on November 08, 2011 1:17 PM:

    Surprising and excellent news.

  • David in NY on November 08, 2011 1:18 PM:

    On the number of judges -- Silberman was joined by Harry Edwards, and I do not believe he is a conservative. The dissenter did not reach the merits, so cannot exactly be said to have sided with Obama.

  • sick-n-effn-tired. on November 08, 2011 1:20 PM:

    Well I for one expect this to be a banner headline on page C-14 next to the Barneys Used Car Lot ad . Sure to be the lead story on the evening Nooze . Also , Too

  • ex-curm on November 08, 2011 2:00 PM:

    Harry Edwards is a Carter appointee

  • Rudy Gonzales on November 08, 2011 4:40 PM:

    Health care is not guaranteed to anyone, everyone should be allowed to drive without auto insurance. Only those with money should be allowed to eat. My whole life I have known America to be a "Social Country", not a "Socialist state"! But, to the TEA/GOP/Re­publican elites, that's what the Democratic party is doing to the country. They lie! Now! The Health Care Law passed by the previous Congress(1­11th) has been made by the current Congress(1­12th) into the scapegoat for their bashing president Obama, while inflicting numerous lies and falsehoods over every side issue while the TEA/GOP/Re­publican push their own religious agenda onto unsuspecti­ng Americans. They are using the government to effect and impose their religious life into others whether they want to or not. Religion in this case and many other cases should not be allowed by the elite few governing the masses. No one has the right to push or force his or her religious beliefs onto others, period! Medical procedures are to be discussed and decisions made by physicians and patients and their families. Politician­s do not have any say in medical issues, period! With the concentrat­ion of wealth and power in fewer and fewer hands, there is too much temptation to run rough shod over the public. All of our politician­s at the local, state and national level are too full of themselves­! Politician­s look out for themselves only! “We need to do something extra-ordi­nary” - Vote out those who will not compromise­­!