On Tuesday, November 8, 2011, the U.S. Circuit Court of Appeals for the DC Circuit, in Washington D.C., issued a decision upholding the Patient Protection and Affordable Care Act (“the Affordable Care Act”) and ruling that the individual insurance mandate in the law is valid and within Congress’ Constitutional authority under the Commerce Clause of the U.S. Constitution.
The DC Circuit Court of Appeals’ opinion, in its entirety, is found on the Court’s website.
The DC Circuit’s decision, by a three-judge panel, confounded some political expectations, as two of the three Judges on the panel were appointed by Republican Presidents.
Judge Laurence Silberman, who wrote the majority opinion, was appointed by President Ronald Reagan, and Judge Harry Edwards, who sided with Judge Silberman in upholding the law, was appointed by President Jimmy Carter. Judge Brett Kavanaugh, appointed by President George W. Bush, dissented on procedural grounds only, arguing that the case should have been dismissed under a federal statute, the federal tax Anti-Injunction Act (AIA), for lack of subject matter jurisdiction by the federal courts until the insurance mandate in the law takes effect in 2014.
Rulings So Far By the Federal Circuit Courts of Appeals
Out of four Federal Circuit Courts of Appeals that have ruled on challenges to the health care law so far, the DC Circuit is the third such appeals court to reject lawsuits challenging the law, and the second specifically to uphold the individual insurance mandate as constitutional and within Congress’ power to regulate interstate commerce under the Commerce Clause of the U.S. Constitution.
The Sixth Circuit Court of Appeals, in Cincinnati, upheld the Affordable Care Act in a decision issued in June, 2011, which specifically found the individual insurance mandate constitutional under the Commerce Clause of the U.S Constitution. That opinion was written by Judge Boyce F. Martin Jr., an appointee of President Jimmy Carter, and joined in by Judge Jeffrey S. Sutton, who was appointed to the Court by President George W. Bush. Judge Sutton wrote a concurring opinion supporting the constitutionality of the health care law.
The Fourth Circuit Court of Appeals, in Richmond, Virginia, issued two decisions by a three-judge panel in September, 2011, dismissing on procedural grounds two lawsuits that challenged the Affordable Care Act. That Court unanimously held in one case that the plaintiff, State of Virginia by its Attorney General Ken Cuccinelli, lacked standing to challenge the Affordable Care Act. In the other case, the Court found that the challenge brought by plaintiffs, Rev. Jerry Falwell’s Liberty University and two individual plaintiffs, was premature until the individual insurance mandate goes into effect in 2014, holding that the Court lacked subject matter jurisdiction to decide the matter under the federal tax Anti-Injunction Act (AIA). All three Judges on the Fourth Circuit panel were appointed by Democratic Presidents.
The Eleventh Circuit Court of Appeals, in Atlanta, is the only federal circuit court of appeals to specifically rule the individual insurance mandate unconstitutional as beyond Congress’ powers to regulate under the Commerce Clause of the U.S. Constitution. In a decision issued in August, 2011, a three-judge panel of the Eleventh Circuit Court of Appeals struck down the individual insurance mandate in the Affordable Care Act as unconstitutional under the Commerce Clause of the U.S. Constitution, but specifically upheld the remainder of the health care law. In a long opinion, that Court explained in detail the contents of the Affordable Care Act and why the remainder of the law must stand independently even if the individual insurance mandate is struck down. The Eleventh Circuit’s opinion was written by Judges Joel F. Dubina and Frank M. Hull, for the majority, with Judge Stanley Marcus dissenting. Judge Dubina was appointed by the first President George Bush, and Judges Hull and Marcus were both appointed by President Bill Clinton.
Appeals to Supreme Court
All three of the decisions by the Sixth, Fourth, and Eleventh Federal Circuit Courts of Appeals have been appealed to the U.S. Supreme Court.
For a detailed explanation of the issues which the various parties in these cases have petitioned the U.S. Supreme Court to decide, see our previous report on U.S. Government Appeals Health Care Law Litigation to Supreme Court.
The U.S. Supreme Court is expected to issue its decision whether to grant review of these issues within days from now, according to BNA.
Some experts have said they expect that the DC Circuit’s opinion, written by conservative Judge Laurence Silberman, may influence the U.S. Supreme Court in deciding the issues that will determine the fate of the health care law.
Simon Lazarus, public policy counsel at the National Senior Citizens Law Center in Washington, told BNA that, given that Judge Silberman shares the conservative viewpoint of several Supreme Court justices, it is “inconceivable” that Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr., and Anthony M. Kennedy “won’t take his opinion seriously.” These justices are likely to be influenced by Silberman’s reasoning, he said.
Other experts told BNA that they believe Conservative DC Circuit Judge Kavanaugh’s arguments in his dissenting opinion were particularly clear and may influence the Supreme Court to decide the issues raised by Judge Kavanaugh. In his dissenting opinion, Judge Kavanaugh, espoused the views of the Fourth Circuit Court of Appeals in its decision, arguing that the constitutional challenges to the individual insurance mandate are premature and, under the federal tax Anti-Injunction Act (AIA), the federal courts lack subject matter jurisdiction to decide these issues until the individual insurance mandate goes into effect in 2014. Conservative DC Circuit Judge Silberman, in his majority opinion, answered these arguments and ruled that the Court is not barred from deciding the constitutionality of the insurance mandate at this time.
This debate between two respected Conservative jurists, in the view of some experts, may make it more likely that the U.S. Supreme Court may address these procedural issues.
The New DC Circuit Court of Appeals Opinion
Procedural History. The DC Circuit Court of Appeals’ decision comes on an appeal of a lawsuit brought by The American Center for Law and Justice, founded by evangelist Pat Robertson, and individual plaintiffs.
The suit challenged the Affordable Care Act’s individual insurance mandate, arguing that the requirement that all individuals purchase health care insurance starting in 2014 exceeded Congress’ power under the Commerce Clause of the U.S. Constitution, and also arguing that it violated First Amendment rights to freedom of religion.
The lower Federal District Court rejected the plaintiffs’ arguments and dismissed the case. Plaintiffs appealed.
The DC Circuit Court of Appeals’ Opinion. The DC Circuit upheld the lower court’s ruling, and rejected the Plaintiffs’ claims.
Dismissing Plaintiffs-Appellants’ arguments that the individual insurance mandate exceeded Congress powers under the Commerce Clause of the U.S. Constitution, Justice Laurence Silberman, for the majority, wrote:
The Court did not accept plaintiffs’ argument that the individual insurance mandate is beyond Congress’ power under the Commerce Clause based on their characterization of an individual decision not to purchase health care insurance as “inactivity” and not “activity” affecting interstate commerce.
“No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce,” the Court said.
The Court reviewed the extent of limits imposed on Congress’ power to regulate interstate commerce under the Constitution.
Article I, §8 of the Constitution states: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The Court concluded that nothing in the text of the Constitution itself appears to limit Congress’ power to regulate only to people already active in an interstate market. “Commerce” in the Constitution does not refer only to “existing commerce,” the Court said. And, “regulate” “can mean to require action,” the court said.
Examining prior Supreme Court decisions, the DC Circuit found that the only “recognized limitations” on Congress’ power under the Commerce Clause are: “(1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate interstate economic behavior if its aggregate impact on interstate commerce is negligible.”
“Those limitations,” the Court wrote, “are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior—if only decisions whether or not to purchase health care insurance or to seek medical care—that does substantially affect interstate commerce.”
The DC Court found that the closest precedent was Wickard v. Filburn, 317 U.S. 111 (1942), in which the Supreme Court upheld federal regulations that prohibited farmers from growing wheat for personal consumption. By preventing farmers from growing their own wheat, and forcing them to buy it on the open market to feed their families, the Wickard decision came “very close to authorizing a mandate similar to ours, at least indirectly,” the DC Court said.
The Court rejected the plaintiffs’ arguments that, if Congress could force individuals to buy insurance, it could force them to do anything. This argument “expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments,” the Court wrote. “But it has no foundation in the Commerce Clause.”
The Court said that the individual insurance mandate “seems an intrusive exercise of legislative power,” however, it concluded, “that seems to us a political judgment rather than a recognition of constitutional limitation.”
“It 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 family,” the Court wrote.
The DC Circuit Court of Appeals’ opinion in its entirety is found on the Court’s website.
See other HelpingYouCare™ reports on the litigation challenging the constitutionality of the Affordable Care Act:
- News on Health Care Reform
- Editorials: What Needs Improvement, With Your Comments
- Advocacy: Proposals for Reform, With Your Comments
- Legislation: Pending & Recently Adopted
- International Health Care Compare: Information on Health Care & Long-Term Care Solutions in Other Countries
Editor’s Note: The author of this article, Constance R. Barnhart, is a practicing attorney at Barnhart Law PLC, who has 30 years of experience practicing at large law firms. She is admitted to practice law in New York, Florida, Texas and Minnesota.
Copyright © 2011 Care-Help LLC, publisher of HelpingYouCare™.