Appeals Court
Upholds Obamafs Health Care Law
Published: June 29, 2011 - New York Times
The Obama administration prevailed in the first appellate review of the 2010
health care law on Wednesday as a three-judge panel from the United States Court
of Appeals for the Sixth Circuit held that it was constitutional for Congress to
require that Americans obtain health
insurance.
The ruling
by the Cincinnati court is the first of three opinions to be delivered by
separate courts of appeal that heard arguments in the health care litigation in
May and June. Opinions are expected soon from panels in both the Fourth Circuit
in Richmond, Va., and the Eleventh Circuit in Atlanta.
Lawyers on both sides of the case widely expect the Supreme Court to take one
or more of the cases, perhaps as soon as its coming term, which starts in
October. The speed of the Sixth Circuit ruling could help insure that timing.
The opinion was the first to not break down strictly along seemingly partisan
lines. In the 2-to-1 ruling, a judge appointed by a Republican president joined
one named by a Democrat to write the majority opinion.
At the lower District Court level, five judges have divided on the question,
with three Democratic appointees backing the law and two Republican appointees
rejecting it.
As they look ahead to the Supreme Court, the lawfs defenders can take
encouragement from the concurring opinion written by Judge Jeffrey S. Sutton, an
appointee of President George W. Bush who is typically considered conservative
on questions of constitutional reach.
After acknowledging the difficulty of pinpointing the limits on Congressf
power to regulate interstate commerce, Judge Sutton wrote: gIn my opinion, the
government has the better of the arguments.h He added: gNot every intrusive law
is an unconstitutionally instrusive law.h
Joining Judge Sutton was Judge Boyce F. Martin Jr., an appointee of President
Jimmy Carter, a Democrat. Dissenting on the central issues was Judge James L.
Graham, a District Court judge appointed by President Ronald Reagan who is on
temporary assignment to the Sixth Circuit.
The appeal, which was heard by the panel on June 1, came in a challenge filed
by the Thomas More Law Center, a conservative public interest firm in Ann Arbor,
Mich. In its 69-page ruling, the panel upheld Federal District Judge George C.
Steeh of Detroit, who concluded that choosing not to obtain health insurance was
a commercial decision that could be regulated by Congress under the Commerce
Clause of the Constitution.
Starting in 2014, the Affordable Care Act will require most Americans to
obtain health insurance or pay an income tax penalty. The administration argues
that without the insurance mandate it is not reasonable to require insurers to
cover all applicants regardless of their health status.
The Sixth Circuit majority held that the mandate was gfacially constitutional
under the Commerce Clauseh for two reasons.
gFirst, the provision regulates economic activity that Congress had a
rational basis to believe has substantial effects on interstate commerce,h Judge
Martin wrote. gIn addition, Congress had a rational basis to believe that the
provision was essential to its larger economic scheme reforming the interstate
markets in health care and health insurance.h
The court directly addressed whether a choice to go without health insurance
qualifies as an gactivityh that substantially affects interstate commerce, which
is the standard set in prior Supreme Court decisions on the breadth of the
Commerce Clause.
gThe activity of foregoing health insurance and attempting to cover the cost
of health care needs by self-insuring is no less economic than the activity of
purchasing an insurance plan,h the opinion stated.
The majority emphasized that the case should not hang on distinctions about
whether the failure to purchase insurance should be defined as activity or
inactivity, a question the Supreme Court has never considered. gThe
constitutionality of the minimum coverage provision cannot be resolved with a
myopic focus on a malleable label,h the judges said.
In his concurrence, Judge Sutton added: gInaction is action, sometimes for
better, sometimes for worse, when it comes to financial risk.h Whether an
individual buys an insurance policy or not, the judge wrote, geach requires
affirmative choices; one is no less active than the other; and both affect
commerce.h
Judge Graham countered in his dissent that if the mandate was allowed git is
difficult to see what the limits on Congressfs Commerce Clause authority would
be.h
But the majority agreed with Neal K. Katyal, the acting United States
solicitor general, who argued that individual choices to not purchase insurance,
when taken in aggregate, have clear commercial effects because they shift the
cost of caring for the uninsured to other payers.
The judges adopted Mr. Katyalfs argument that because the need for health
care is unpredictable, it is impossible for individuals to opt out of the
market. And they agreed that cost-shifting was inevitable so long as the federal
government required hospitals to treat those who show up with life-threatening
conditions.