WASHINGTON — A conservative-leaning appeals court panel on Tuesday upheld the constitutionality of President Barack 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 requirement 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 those 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 claimed 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. But the 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, a Carter appointee. 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 him 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. This aspect of the court challenges issue involves a federal law aimed at preventing lawsuits from tying up tax collection. Kavanaugh and the Richmond court held that taxpayers must begin paying the penalty for not purchasing insurance before they can challenge it in court.
Jay Sekulow, chief counsel for the American Center for Law and Justice, which filed the suit in Washington, said the group is 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 is confident that the Supreme Court will uphold the law, as the DC 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 forego 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."
The liberal interest group Constitutional Accountability Center said the ruling from a solid conservative like Silberman, as the Supreme Court prepares to take up the issue, is a "devastating blow" to opponents of the law.
"With two prominent conservatives, this panel was thought to be a dream come true for conservative challengers of the act," said the center's president, Doug Kendall. "Today that dream became a nightmare, as the panel unanimously rejected the challenges to the act, disagreeing only about why those challenges failed."
For more on the legal history of Obama's health care law, see the slideshow below:
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Round 1: The District Courts Divide
U.S. District Judge George Caram Steeh, a Clinton appointee sitting in the Eastern District of Michigan, released the first major Affordable Care Act decision in October 2010. In <a href="http://www.mied.uscourts.gov/news/docs/09714485866.pdf" target="_hplink"><em>Thomas More Law Center v. Obama</em></a>, Steeh sided with the government to hold the law constitutional.
"The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic," Steeh wrote. "These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those without insurance."
Round 1: The District Courts Divide
At the end of November 2010, another Clinton appointee, Judge Norman Moon of the Western District of Virginia, agreed with Judge Steeh. In <a href="http://www.vawd.uscourts.gov/OPINIONS/MOON/LIBERTYUNIVERSITYVGEITHNER.PDF" target="_hplink"><em>Liberty University v. Geithner</em></a>, Moon wrote that "by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."
Round 1: The District Courts Divide
In December 2010, however, Judge Henry Hudson, a George W. Bush appointee sitting in the Eastern District of Virginia, ruled otherwise. In <a href="http://media.washingtonpost.com/wp-srv/metro/docs/Hudson_ruling.pdf?hpid=topnews" target="_hplink"><em>Virginia v. Sebelius</em></a>, Hudson struck down the individual mandate, writing that "an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the commerce clause." Importantly, Hudson also held that the individual mandate is severable from the rest of the Affordable Care Act, which means a court can strike it down while allowing the law's remaining provisions to stand.
Round 1: The District Courts Divide
Finally in January 2011, Judge Roger Vinson, a Reagan appointee in the Northern District of Florida, evened the score but upped the ante. In <a href="http://www.scribd.com/doc/47905937/Health-Care-Ruling-by-Judge-Vinson" target="_hplink"><em>Florida v. Department of Health and Human Services</em></a>, not only did he strike down the individual mandate as exceeding Congress' power under the commerce clause, but he also took the whole health care law down with it.
"The act," Vinson wrote, "like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker."
Round 2: The Appeals Courts Split
In June 2011, the U.S. Court of Appeals for the 6th Circuit <a href="http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf" target="_hplink">upheld, by a 2-1 vote</a>, Judge Steeh's decision in <em>Thomas More Law Center</em>. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, was the first judge chosen by a Republican president to reject the commerce clause challenge, writing that "no one must 'pile inference upon inference' to recognize that the national regulation of a $2.5 trillion industry, much of it financed through" national health insurance companies, "is economic in nature." He joined Judge Boyce Martin, a Jimmy Carter appointee, in the majority, while Judge James L. Graham, a Reagan appointee, wrote a vigorous dissent.
In August, the 11th Circuit, reviewing <em>Florida v. HHS</em>, <a href="http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf" target="_hplink">produced a near mirror-image result</a>. Judge Frank Hull, a Clinton appointee, joined the Reagan-appointed Judge Joel Dubina to affirm District Judge Vinson's decision to strike down the individual mandate. Judge Stanley Marcus, a Clinton appointee, dissented, quoting heavily from Sutton's 6th Circuit concurring opinion. All three 11th Circuit judges found the mandate severable from the rest of the Affordable Care Act, reversing District Judge Hudson's decision to deep-six the entire law.
Both appeals courts unanimously rejected the government's taxing power argument, insisting that if Congress had thought the penalty for not buying insurance was a tax, it would have explicitly called it a tax. On this issue, a third appeals court created another circuit split.
Round 2: The Appeals Courts Split
In September 2011, the 4th Circuit dismissed two challenges to the health care law, finding that the plaintiffs did not have standing to bring their lawsuits. The panel did find that <a href="http://pacer.ca4.uscourts.gov/opinion.pdf/102347.P.pdf" target="_hplink">the penalty for not buying insurance was a tax</a> -- a good sign for the government's defense of the law. But rather than hold that the individual mandate was a valid exercise of Congress' taxing power, Judges Diana Gribbon Motz, a Clinton appointee, and James Wynn, an Obama appointee, said that another federal law, the Anti-Injunction Act, prevented the plaintiffs from challenging the mandate until they actually had to pay the tax -- which cannot happen before the provision goes into effect in 2014.
The third judge, Obama appointee Andre Davis, said he wouldn't have dismissed the lawsuits and would have upheld the individual mandate based primarily on commerce clause ground.
Regardless of the methodology, the Obama administration was now winning 2-1 in the courts of appeals against the Affordable Care Act's challengers.
Final Round: The Supreme Court Takes The Case
The Supreme Court is most likely to choose to hear a case for one of three reasons: The constitutionality of a federal law hangs in the balance, the circuit courts disagree on the same issue, or the solicitor general advises the Court to take the case. Cases that fulfill just one of these considerations stand a good chance of reaching the justices. The health care cases had all three.
In November 2011, the justices <a href="http://www.huffingtonpost.com/2011/11/14/obama-health-care-law_n_1092387.html" target="_hplink">agreed to review</a> the 11th Circuit's decision. To signal how seriously it took the challenges, the Court soon thereafter scheduled six hours of oral argument to take place from March 26 to 28, 2012. Normally, even for blockbuster cases, the justices only allot one hour for oral argument.
Final Round: The Supreme Court Hears Oral Argument
All eyes turned to the Supreme Court in late March 2012 when the justices heard oral argument and gave their first public hints of where they stood on the Affordable Care Act's constitutionality.
On the first day, March 26, liberal and conservative justices alike <a href="http://www.huffingtonpost.com/2012/03/26/health-care-law-supreme-court_n_1373455.html" target="_hplink">showed little interest</a> in following the 4th Circuit's decision to throw out the challenge to the health care law on a technicality before ever reaching the constitutional merits of the individual mandate.
That display of unity disappeared on Tuesday, March 27, as the Court took on the <a href="http://www.huffingtonpost.com/2012/03/27/supreme-court-health-care_n_1373469.html" target="_hplink">main event</a>: two hours of argument over the mandate. The Court's four Democratic appointees all appeared to find the mandate well within Congress' powers to regulate interstate commerce, as the 6th Circuit had held; the Court's five Republican appointees, in concert with the 11th Circuit, seemed to think otherwise. Only in the final moments did swing vote Justice Anthony Kennedy soften his tone by musing aloud whether the health insurance market is different enough, after all, to allow a mandate to prevent cost-shifting where it might not be permissible in another market. "[M]ost questions in life are matters of degree," he said.
On Wednesday, March 28, the justices <a href="http://www.huffingtonpost.com/2012/03/28/health-care-case-supreme-court-john-roberts_n_1386692.html" target="_hplink">considered</a> what other parts of the Affordable Care Act would fall if they found the mandate unconstitutional. No majority emerged. Several justices agreed with the challengers that the whole law must fall. Several others agreed with the Obama administration that two key (and popular) provisions could not survive without the mandate. Still others indicated some sympathy for severing the mandate alone and allowing the rest of the law to stand.
A decision is expected by the end of June.
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NEDRA PICKLER 11/ 8/11 09:21 PM ET Associated Press