[NYAPRS Enews] NYT: Obama Health Law Survives Test in Court of Appeals

[Harvey Rosenthal]

Health Law Survives Test in Court of Appeals

By John Schwartz  New York Times  November 8, 2011

 

A federal appeals court in Washington upheld the Obama administration's
health care law
<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthto
pics/health_insurance_and_managed_care/health_care_reform/index.html?inl
ine=nyt-classifier>  on Tuesday in a decision written by a prominent
conservative jurist.

 

The decision came as the Supreme Court is about to consider whether to
take up challenges to the Affordable Care Act, a milestone legislative
initiative of the administration.

 

Of four appellate court rulings on the health care law so far, this is
the third to deal with the law on the merits, and the second that
upholds it.

The United States Court of Appeals for the District of Columbia Circuit
in Washington issued the 37-page opinion
<http://www.cadc.uscourts.gov/internet/opinions.nsf/055C0349A6E85D7A8525
794200579735/$file/11-5047-1340594.pdf>  by Judge Laurence H. Silberman
<http://topics.nytimes.com/top/reference/timestopics/people/s/laurence_h
_silberman/index.html?inline=nyt-per> . In the opinion, Judge Silberman,
who was appointed by President Ronald Reagan, described the law as part
of the fundamental tension between individual liberty and legislative
power.

 

"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, no matter how local - or seemingly
passive - their individual origins," he wrote. The fact that Congress
may have never issued an individual mandate to purchase something
before, a central argument for many opposing the law, "seems to us a
political judgment rather than a recognition of constitutional
limitations," he wrote.

 

A 65-page dissent
<http://www.cadc.uscourts.gov/internet/opinions.nsf/055C0349A6E85D7A8525
794200579735/$file/11-5047-1340594.pdf>  by Judge Brett M. Kavanaugh, a
conservative jurist appointed by President George W. Bush, stated that
the courts lack jurisdiction until the law's tax penalties take effect
in 2015. Citing the 19th-century Anti-Injunction Act, he said that the
"important and long-standing" law "poses a jurisdictional bar to our
deciding this case at this time."

 

The split among the appellate courts increases chances that the Supreme
Court will hear the case. Tuesday's opinion is the second appeals court
decision that upholds the law on the merits. The Court of Appeals for
the 11th Circuit, based in Atlanta, struck down the individual mandate
in a suit brought by officials of 26 states, and experts say it is most
likely to be among those that the Supreme Court will choose to hear if
the judges decide to take up the cases at their private conference on
Thursday.

 

The White House posted a blog entry
<http://www.whitehouse.gov/blog/2011/11/08/another-legal-victory-health-
reform>  by Stephanie Cutter, a senior aide to the president, that
hailed "yet another victory" for Americans getting benefits from the
early elements of the bill.

 

The fact that two leading lights of conservative jurisprudence decided
against positions held by opponents of the health care law threatens to
upend the popular notion that the fate of the law will be determined by
judges along political lines. In lower courts, judges appointed by
Republican presidents did tend to rule against the law while those
appointed by Democrats issued rulings in its favor. Those expecting the
pattern to continue have predicted defeat for the law at the Supreme
Court.

 

Jack M. Balkin, a constitutional scholar at Yale Law School, said that
what is emerging at the appeals level, including a June decision
supporting the law
<http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf>  from the
Sixth Circuit that with a concurrence by Judge Jeffrey S. Sutton,
another Bush appointee, shows "it's actually a much more complicated
story about how judges are seeing this act."

 

In fact, Professor Balkin said, conservative legal theory runs deeper
than politics, with two schools of thought. The one that emerged in
Tuesday's decision "emphasizes judicial restraint and respect of
political branches when they attempt to make national economic policy."
The other school, he suggested, "argues for robust judicial review to
protect constitutional values that conservatives hold dear, for example,
federalism and individual liberty."

 

Elizabeth B. Wydra, chief counsel to the Constitutional Accountability
Center, a Washington group that supports the law, underscored that
pointin a statement
<http://theusconstitution.org/page_module.php?id=28&mid=102>  that
called the decision "a devastating blow to the challengers of the act,
delivered by one of the country's foremost conservative jurists."

A conservative legal organization that took part in the suit opposing
the law, the American Center for Law and Justice, expressed
disappointment
<http://aclj.org/obamacare/aclj-calls-appeals-court-decision-backing-oba
macare-disappointing-appeal-come> . Jay Sekulow, the chief counsel for
the group, said "we still remain confident that ObamaCare and the
individual mandate, which forces Americans to purchase health insurance
<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthto
pics/health_insurance_and_managed_care/index.html?inline=nyt-classifier>
, is the wrong prescription for America and ultimately will be struck
down as unconstitutional by the U.S. Supreme Court."

Randy E. Barnett, a professor at Georgetown University's law school and
an opponent of the law, said: Judge Silberman's opinion "rests on his
claim that Congress has an unlimited power to address whatever it deems
to be a national problem. Fortunately, his will not be the last word on
these constitutional challenges."

 

http://www.nytimes.com/2011/11/09/health/policy/appeals-court-upholds-he
alth-care-law.html

===========

 

Appeals Court Upholds Obama Health Care Law

By Nedra Pickler  Associated Press November 8, 2011

 

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."

 

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