They figured he would strike down "Obamacare" (as they call it), and thus influence the five Republican appointees on the U.S. Supreme Court, which may well rule on the reform laws in the middle of the 2012 presidential campaign. They figured a thumbs-down verdict from Silberman would carry extra weight, since he is the senior judge on the U.S. Court of Appeals for the District of Columbia, arguably the most prestigious of all the federal benches.
But Silberman refused to buy the conservative argument that people should have the "freedom" to forgo health coverage and to run up medical bills on the public dime when they do get sick.
Instead, Silberman articulated the obvious: The U.S. Constitution gives Congress the right to regulate interstate commerce, health care is interstate commerce, and the uninsured adversely affect interstate commerce by shifting their costs to everyone else. Therefore, he ruled, the government has the right to compel the uninsured to get with the program.
Writing the court's 2-1 opinion, he said:
"[T]he 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."
Therefore, "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems."
In other words, we are all interconnected. In recognizing that the federal right to regulate for the common good, Silberman was almost channeling poet John Donne, who wrote, "No man is an island entire of himself." Just as important, Silberman listed previous Supreme Court rulings that have long upheld the federal right to regulate interstate commerce. (Conservatives always say they want their judges to respect judicial precedent.)
He wrote that, yes, the health-coverage requirement may indeed be a curb on individual liberty, "but no more so than a command that restaurants and hotels are obliged to serve all customers regardless of race" - a reference to the landmark 1964 Civil Rights Act, which the high court later upheld. He also wrote that if the feds can regulate the amount of wheat that farmers grow for their personal use - the high court upheld this federal regulation in 1942 - there's ample precedent for telling people they have to buy health coverage.
And as I mentioned earlier, Silberman is not the first conservative federal judge to rule that way. Back in June, in a 2-1 ruling by the U.S. Court of Appeals circuit based in Ohio, Jeffrey Sutton looked at factual reality and drew the same conclusions. And he's an appointee of George W. Bush.
These excerpts, from Sutton's concurring opinion, will now sound familiar:
"Health-related spending amounted to 17.6 percent of the national economy, or $2.5 trillion, in 2009. . . . Virtually all of this market affects interstate commerce. . . . Call this mandate what you will - an affront to individual autonomy or an imperative of national health care - it meets the requirement of regulating activities that substantially affect interstate commerce."
Sutton noted that many Americans resent being compelled "to buy products they do not want." But he pointed out that health care is a unique and critically important market; it has "few (if any) parallels in modern life." Indeed, he wrote, medical costs for the uninsured totaled $43 billion in 2008 alone. All told, Obama and the Democrats had sufficient reason - and the right - to act as they did. In Sutton's words, "Not every intrusive law is an unconstitutionally intrusive law."
If Silberman and Sutton are barometers of wise conservative jurisprudence, then it would appear that Obama has a decent shot at getting five votes on the high court - most important, swing-voting Reagan appointee Anthony Kennedy. We can't know how the court will go, but those two judges offer hope that common sense will prevail.
Contact Dick Polman
or on Twitter at @dickpolman1.