In an opinion written by Judge Laurence Silberman, a Ronald Reagan appointee, a three-judge panel of the D.C. Circuit found the "individual mandate" of the Patient Protection and Affordable Care Act constitutional. While some view this opinion as an affirmation of the constitutionality of the President's health care legislation, others like Ashby Jones of the Wall Street Journal argue that impending Supreme Court review makes this decision less significant though potentially influential.
Judge Silberman wrote in the opinion:
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. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
Judge Brett Kavanaugh, a George W. Bush appointee, dissented, but not on the merits, he wrote:
Between now and 2015, Congress might keep the mandate as is and the President may enforce it as is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day - a day that may never come.
The case is Susan Seven-Sky v. Holder, No. 11-5047, slip op. (D.C. Cir. Nov. 8, 2011).