Tuesday, November 08, 2011

DC Circuit Upholds ACA

And like the 6th Circuit, it was a high-profile conservative stalwart (actually, two) who took the lead. Judge Brent Kavanaugh found that the court lacked jurisdiction to hear the case under the Anti-Injunction Act, while Judge Laurence Silberman (joined by Judge Harry Edwards) reached the merits and upheld the act. The opinion is here, with Silberman ultimately declaring that "appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent" (incidentally, only in the legal arena can a panel release opinions totaling 103 pages and declare that they are being "sparing in adding to the production of paper.").

It is worth emphasizing who these judges are. Silberman is a Reagan appointee and Kavanaugh was put on the bench by George W. Bush. Kavanaugh, like Judge Sutton on the Sixth Circuit, is considered a rising star amongst right-wing judges. And with respect to Silberman, there's no "rising" about it -- he's been among the most high-profile conservative judges in the country for decades now (Edwards, for his part, is a liberal stalwart). Perhaps for this reason, Stuart Benjamin expects Judge Silberman's opinion to serve as a template for a majority opinion upholding the ACA from either Justice Scalia or Kennedy.

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