D.C. court upholds health reform law

By Jennifer Haberkorn 

The D.C. Circuit Court of Appeals on Tuesday upheld the health care reform law’s requirement that nearly all Americans buy insurance — and the law’s supporters are declaring victory because the opinion was written by a conservative judge.

The ruling comes just days before the Supreme Court is expected to consider whether to take up the issue. That decision could come as soon as Thursday, when the justices will hold a private conference to discuss what cases to take this term.

The D.C. Circuit is now the second appeals panel to uphold the health reform law’s individual mandate.

The D.C. Circuit opinion was written by Laurence Silberman, who was nominated by former President Ronald Reagan. Silberman and Senior Judge Harry Edwards, who was nominated by former President Jimmy Carter, upheld a lower court ruling that the law was constitutional.

Judge Brett Kavanaugh, who was appointed by former President George W. Bush, dissented.

The mandate, Silberman wrote, “seems an intrusive exercise of legislative power" and “certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain or that a farmer cannot grow enough wheat to support his own family.”

“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,” Silberman wrote.

The D.C. Circuit Court is the fourth appeals panel to consider a lawsuit challenging the health reform law. The 6th Circuit upheld the law, the 11th Circuit struck the mandate and the 4th Circuit ruled that the Anti-Injunction Act — which says Americans have to pay a tax before they can challenge it in court — barred it from ruling on the mandate until at least 2014.

The lawsuit in Tuesday’s ruling challenged the law’s individual mandate. It was filed by Susan Seven-Sky, a self-employed chiropractor from New York. In February, D.C. District Court Judge Gladys Kessler, who was nominated by former President Bill Clinton, ruled that the law was constitutional.

The issue is expected to be taken up the Supreme Court this term, as the Justice Department has already appealed its defeat in the 11th Circuit health reform case, which was filed by 26 states. The justices could decide in their private conference Thursday to take the case.

While the Seven-Sky suit is unlikely to be taken up by the Supreme Court, the D.C. Circuit is considered one of the most well-respected in the country. Its opinion is likely to be reviewed by the Supreme Court justices.

Silberman wrote a concise, 32-page opinion, acknowledging his court is not the last to address the issue.

“Since so much has already been written by our sister circuits about the issues presented by this case — which will almost surely be decided by the Supreme Court — we shall be sparing in adding to the production of paper,” he wrote.

In a 64-page dissent, Kavanaugh wrote that the Anti-Injunction Act must apply in any court analysis of the law. During oral arguments in September, the three judges spent a significant amount of time discussing the possible impact of the tax law.

“Although the act may seem an inconvenient technicality in the context of a particular case, it is essential to the overall system of orderly and prompt federal tax administration,” he wrote.

In September, the 4th Circuit Court of Appeals ruled that the penalties consumers would have to pay if they don’t buy insurance is a tax. The panel of judges said they couldn’t rule on whether the mandate is constitutional until consumers pay it in 2014.

Since the 4th Circuit ruling, other circuits have paid more attention to the issue.

Both the federal government and the plaintiffs in this and other high-profile health reform lawsuits agreed that the act doesn’t stop a court from ruling on the constitutionality of the law. While both supporters and opponents of the law agree that they’d rather have a ruling sooner than later, appeals courts like to rule on the narrowest possible aspect of a case.