- The Washington Times - Tuesday, November 8, 2011

In a frank ruling upholding President Obama’s new health care law, a federal appeals court said Tuesday the individual mandate requiring all Americans to buy health insurance encroaches on individual liberty, but is still constitutional because it allows the government to solve a national problem.

In a 2-1 ruling that delivered a victory to the White House, the U.S. Circuit Court of Appeals for the District of Columbia became the second appellate panel to uphold the individual mandate. Judge Laurence H. Silberman said requiring individuals to purchase health insurance is no different than other obligations the government imposes, such as requiring businesses to serve all customers regardless of race.

“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,” Judge Silberman wrote in the majority opinion.

Brought by the American Center for Law and Justice (ACLJ), a Christian legal group, the case involved five plaintiffs who said they could face thousands of dollars in fines for failing to purchase health insurance. They also argued that the mandate violated their religious freedom.

Jay Sekulow, chief counsel for ACLJ, said the organization would either ask the full appeals court to hear the case or ask the Supreme Court to take it up.

“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.”

At issue is whether the individual mandate falls under a clause in the Constitution allowing Congress to regulate commerce between the states. Supporters say the mandate falls within appropriate bounds because everyone requires health care at some point in their lives  — thus requiring someone to pay for it.

But opponents charge that Congress exceeded its authority in passing the mandate, and that if allowed to stand, there will be no limit to what Americans may be required to buy.

Judge Harry T. Edwards agreed with Judge Silberman, who wrote that the apparent absence of a limit on Congress’ ability to require Americans to purchase any product or service was “troubling, but not fatal.”

“The health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care service,” Judge Silberman wrote.

Randy Barnett, who teaches constitutional law at Georgetown University, called it the “most ambitious, the most far-reaching claim of federal power” decision of any court to rule on the individual mandate so far.

“It yields to the imperative that Congress be free to forge national solutions to national problems,” Mr. Barnett said. “[The Founders] declined to put something like that in the Constitution cause it was proposed at the Constitutional Convention, and they didn’t put it on there. That’s a huge deal.”

The lower court rulings likely will be considered by the Supreme Court next year, when it is expected to take up the challenges to the Affordable Care Act.

With the decision by the D.C. Circuit, and a similar decision by the 6th Circuit in June, appeals courts have ruled 2-1 in favor of the individual mandate. The 11th Circuit struck the individual mandate down in August, but upheld the rest of the law.

Three other appeals courts have said challenges are outside their jurisdiction.

While most rulings over the Affordable Care Act have split along party lines, with Republican-appointed judges generally opposing the individual mandate and Democrat-appointed judges generally favoring it, Judge Silberman was appointed by President Reagan. Judge Edwards was appointed by President Carter.

Judge Brett M. Kavanaugh, appointed by President George W. Bush, dissented, saying the court did not have jurisdiction to rule on the case.

The White House has asked the Supreme Court to rule on the challenges during its current term, before Mr. Obama seeks re-election next November. Spokeswoman Stephanie Cutter applauded the Tuesday ruling, expressing confidence that the Supreme Court will reach the same conclusion.

“The ruling is yet another victory for the millions of Americans who are already benefiting from the law, including the parents of children with pre-existing conditions, women getting mammograms with no out-of-pocket costs, seniors saving hundreds of dollars on their prescription drugs, and 1 million young adults now newly insured through their parents’ plan,” she said.

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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