Silberman's Majority Opinion as Template?

(Stuart Benjamin)

The D.C. upheld the constitutionality of the health care act today (Silberman and Edwards reached the merits and voted to uphold; Kavanaugh found no jurisdiction and did not reach the merits).  Silberman's opinion reads to me like the opinion I would expect from Justice Scalia upholding the act — notably, that one can distinguish activity from inactivity, but such a distinction is novel and not grounded in doctrine; and that "Appellants' view ... expresses a concern for individual liberty that seems more redolent of Due Process arguments."  Indeed, I will make a bold and perhaps foolish prediction: if Scalia is assigned the majority in the health care act case, my guess is that it will bear a considerable resemblance to the Silberman opinion.  Let me add that I think Scalia or Kennedy is the most likely author of the majority in the case.  And, yes, I do think Scalia (and Kennedy, for that matter) will vote to uphold the act.