- The Washington Times - Wednesday, June 29, 2011

A federal appeals court on Wednesday ruled the individual mandate in the Democrats’ health care law is constitutional, becoming the highest court to back the key part of President Obama’s signature achievement.

In a 2-1 decision, a three-judge panel of the 6th U.S. Circuit Court of Appeals accepted the Obama administration’s arguments in their totality, ruling that requiring every American to have insurance is a valid means to get at Congress‘ goal of lowering health care costs for everyone else.

The majority specifically rejected opponents’ claims that the law falls outside of Congress‘ power because it regulates economic “inactivity” — the act of not buying insurance — rather than activity.

“The text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court. Furthermore, far from regulating inactivity, the provision regulates active participation in the health care market,” Judge Boyce F. Martin Jr. wrote in his opinion, joined by Judge Jeffrey S. Sutton.

Judge Sutton, appointed by President George W. Bush, is the first Republican-nominated judge to uphold the health care law.

Doug Kendall, president of the Constitutional Accountability Center, said that instantly transforms the fight over the law from a partisan political battle into a legal dispute.

“Judge Jeffrey Sutton has done his job, and in doing so has transformed the debate over the Affordable Care Act and powerfully advanced the cause of judicial independence.”

Although the panel was the first appeals court to rule on the constitutionality of key parts of the health care law, it won’t be the last. Judge Sutton acknowledged that the ruling is “utterly non-final in this case” because it inevitably will be decided by the Supreme Court.

At root, the question before the courts is whether the Constitution’s grant of power to regulate interstate commerce, found in Article I, Section 8, Clause 3, is broad enough to encompass the health care law’s requirement that all Americans have health insurance.

The government said it is necessary to solve the problem of people refusing to buy insurance and then relying on emergency care — which the law says they cannot be denied.

In his dissent, Senior Judge James L. Graham said Congress created the freeloader problem, which doesn’t justify an unconstitutional solution. He said requiring everyone to hold health insurance doesn’t regulate the health care market because there is no evidence that people who are insured are actually consuming health care services.

“Simply put, the mandate does not regulate the commercial activity of obtaining health care. It regulates the status of being uninsured.”

He also warned that allowing the health care law would tempt Congress to shoehorn in other questionable exercises of power by attaching them to economic decisions.

“To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does,” he wrote.

The case is Thomas More Law Center, et al, v. Barack Obama.

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