An appeals court backs health law

The conservative-leaning panel said Congress could require Americans to buy insurance.

Posted: November 09, 2011

WASHINGTON - A conservative-leaning appeals court panel on Tuesday upheld the constitutionality of President Obama's health-care law, as the Supreme Court prepares to consider this week whether to resolve conflicting rulings over the law's requirement that all Americans buy health-care insurance.

A panel of the U.S. Court of Appeals for the District of Columbia issued a split opinion upholding the lower court's ruling that found Congress did not overstep its authority in requiring people to have insurance or pay a penalty on their taxes, beginning in 2014. The requirement is the most controversial one of Obama's signature domestic legislative achievement and the focus of conflicting opinions from judges across the country.

The Supreme Court could decide as early as Thursday during a closed meeting of the justices whether to accept appeals from some of the earlier rulings.

The suit in Washington was brought by the American Center for Law and Justice, a legal group founded by evangelist Pat Robertson. It contended that the insurance mandate is unconstitutional because it forces Americans to buy a product for the rest of their lives and that it violates the religious freedom of those who choose not to have insurance because they rely on God to protect them from harm.

The appeals court ruled that Congress had the power to pass the requirement to ensure that all Americans can have health-care coverage, even if it infringes on individual liberty.

"That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before - but that seems to us a political judgment rather than a recognition of constitutional limitations," Judge Laurence Silberman, an appointee of President Ronald Reagan wrote in the court's opinion.

Silberman was joined by Judge Harry Edwards, an appointee of Jimmy Carter.

But, they added, "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."

Judge Brett Kavanaugh, a former aide to President George W. Bush, who appointed Kavanaugh to the bench, disagreed with the conclusion without taking a position on the merits of the law. He wrote a lengthy opinion arguing the court doesn't have jurisdiction to review the health-care mandate until after it takes effect in 2014.

The federal appeals court in Cincinnati also upheld the law. The federal appeals court in Atlanta struck down the core requirement that Americans buy health insurance or pay a penalty, while upholding the rest of the law.

And like Kavanaugh's dissenting opinion, an appeals court in Richmond, Va., ruled it was premature to decide the law's constitutionality.

Jay Sekulow, chief counsel for the American Center for Law and Justice, which filed the suit in Washington, said the group was considering whether to ask the full appeals court to hear the case or make a request directly to the Supreme Court.

"We still remain confident that Obamacare and the individual mandate, which forces Americans to purchase health insurance, is the wrong prescription for America and ultimately will be struck down as unconstitutional by the U.S. Supreme Court," Sekulow said.

The White House said Tuesday it was confident that the Supreme Court would uphold the law, as the D.C. circuit did. Obama adviser Stephanie Cutter said in a White House blog post that opponents who say the individual-mandate provision exceeded Congress' power to regulate commerce "are simply wrong."

"People who make a decision to forgo health insurance do not opt out of the health care market," she wrote. "Their action is not felt by themselves alone. Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others. Those costs - $43 billion in 2008 alone - are borne by doctors, hospitals, insured individuals, taxpayers and small businesses throughout the nation."

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