DC Federal Circuit Court of Appeals Upholds Health Care Law; Finds Individual Insurance Mandate Constitutional

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:

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 … 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.

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.

More Information

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:

U.S. Government Appeals Health Care Law Litigation to Supreme Court;

U.S. 4th Circuit Court of Appeals Dismisses Two Lawsuits Challenging Affordable Care Act;

11th Circuit Appeals Panel Strikes Insurance Mandate, Upholds Rest of Health Care Law;

U.S. Sixth Circuit Court of Appeals Upholds Affordable Care Act;

Lawsuits Challenging Health Care Law to Be Argued on Appeal May 10;

Florida Federal Judge Stays His Previous Decision Against Health Care Reform Law;

D.C. Federal Judge Dismisses Lawsuit Challenging Health Care Law — Courts now 3-2 in Favor of Law;

Florida Federal Judge Declares Health-Care Law ‘Void’ in its Entirety – Conflicting Judicial Decisions Now Pending Appeal; and

Central Provision of Health Care Law Is Ruled Unconstitutional.

And, see the HelpingYouCare™ resource pages on VoicesForCare™, including:

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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™.

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7 comments to DC Federal Circuit Court of Appeals Upholds Health Care Law; Finds Individual Insurance Mandate Constitutional

  • Alfred McBride

    The Constitution leaves powers that were not specified for the Congress to the people. The people refuse absolutely to allow the government to perform a TAKING of our property effectively transfering our property to the Health Care industry. It is a violation of the Constitution and Congress and the Judges have NO AUTHORITY to require us to do it. NO GOVERNMENT BRANCH was given the power to order unConstitutional laws or judgements. We the people hereby forbid the Government branches to attempt to violate the Constitution and start upholding it as their oath of offies demands!

  • bushakrajanetta

    Protected from the Repuke’s death panels for now, thank you for protecting the sick and the vulnerable from the Tea Party and the Fundie Freaks.

  • Alfred McBride

    If the Federal Government may have this type of Juristiction over companies to order and make them pay for this and that as a business but they have no authority over the person to order them to pay for this or that thus the idea of personal liberty. Further, it is not just an entrusion it is a theft of our property a TAKING and a violation of the Constitution. The U.S. Government has lost its way and is not only overstepping its authority is also violating their Constitutional oaths in the making of such laws. The Judges are missing the point that We the people are the boss and that their power not ours is limited to what we allowed them to have and we didn’t allow them to tell us what we spend our money on its our money..not theirs..they have no right no say. Just because they have commited Consitutional violations in other legal judgements they now use those violations as excuses to justify further violations..hands in the cookie jar…again..its a slippery slope..

  • KatieMurphy

    The govt has the right to require health insurance just as states may require car liability insurance. The govt has the right to require people to pay Social security taxes, so that they will not be a burden on others in their old age.

    The govt should have the right if it doesn’t already to require people to carry medical insurance, so they don’t become a burden on others. Or be able to simply buy insurance when they are seriously ill. Which would be the equivalent of a dying person buying life insurance.

    The republican party with its load of protecting life supporters should be supporting Obama’s health care bill. Virtually every industrialized nation has, one way or another guaranteed health care for all.

    And while every solution has some problems, pls don’t try to point to some problem in a specific area as the reason we shouldn’t do Universal care.

  • Alfred McBride

    We the people decide if we want insurance. We the people can not be ordered by the U.S. Government legally to TAKE our property and then to give it to another under some tryranistic oppressive communist attempt to take our property. The Banks and the Government partnered to TAKE our properties in violation of the Constitution and they both profited from it, and now the Government is UnConsitutionally attempting to TAKE our property,liberties, and pursuits of happyness. We the people hereby order the Congress and the Judges to cease and desist in attepting to rob our properties to give to themselves as the government benefits by raising taxes upon the health care industry after ensuring the TAKING of our property to be given to them..then to the government..Since when did America become Merry Ole England again????

  • DB-R

    Katie compares car insurance to health insurance and then states, “pls don’t try to point to some problem in a specific area as the reason we shouldn’t do Universal care”. LOL

  • MarkGillogly

    It’s no different than auto insurance. The problem is that the BIg Dog Health Insurance Companies can not [read: will not] offer an affordable health plan to 20-35 year olds, disabled, and sick people. Let the government [read: taxpayers] take care of ‘em is there motto.

    And, so it will. And who benefits? Well, first and foremost: the taxpayers. We have a larger pool of participants paying into the system to help care for the sick and disabled. We the People cut are losses. We the People can sign up for the government plan if we want to and if we have to. We the People are no longer going to have to scrounge & beg for preventive care, emergency care, specialization, hospitalization, prescription drugs, and medical follow-up.

    It all makes sense to me. Just plain bu$ine$$ $ense.

    Get with it, People. Sorry Blue Cross, Blue Shield, Anthem, Aetna, UnitedCare, and CIGNA. You lose!

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