Re­form law spurs court clash

Fed­eral ap­peals judges grill Va. ACA op­po­nents

Modern Healthcare - - Front Page - Joe Carl­son

Op­po­nents of the Pa­tient Pro­tec­tion and Affordable Care Act re­ceived a tough grilling from three fed­eral ap­peals judges ap­pointed by Demo­cratic pres­i­dents. Dur­ing oral ar­gu­ments in two law­suits chal­leng­ing the law last week in the 4th U.S. Cir­cuit Court of Ap­peals in Rich­mond, Va., the ran­domly cho­sen panel of judges asked why op­po­nents are fix­at­ing so strongly on the idea that Congress can­not reg­u­late eco­nomic “in­ac­tiv­ity” when that con­cept is not in the Con­sti­tu­tion and has never be­fore been specif­i­cally ap­plied in a sim­i­lar case.

The an­swer, at­tor­ney and op­po­nent of the law Mathew Staver told the judges, is that Congress had es­sen­tially never been so au­da­cious. “This health in­surance law re­dis­tributes wealth among pri­vate par­ties to pro­mote an ideal that is hu­man­i­tar­ian in na­ture,” Staver said. “How­ever, the act goes far be­yond the outer lim­its of the Con­sti­tu­tion by seek­ing to reg­u­late, for the first time in his­tory, noneco­nomic ac­tiv­ity.”

In one law­suit against the Affordable Care Act, two Vir­gini­ans—Michele Wad­dell and Joanne Mer­rill—said Congress had no right to in­ter­fere with their per­sonal de­ci­sions to pay for their health­care out of pocket in­stead of buy­ing in­surance. The law will force nearly all Amer­i­cans to buy in­surance or pay an in­come tax penalty by 2014.

Wad­dell and Mer­rill’s de­ci­sions left them “out­side the stream of com­merce,” and thus out­side Congress’ abil­ity to reg­u­late their in­ac­tiv­ity in the health in­surance mar­ket­place, said Staver, the lead at­tor­ney in that case ( Lib­erty v. Gei­th­ner) for Lib­erty Univer­sity, an evan­gel­i­cal Chris­tian col­lege in Lynch­burg, Va.

Acting U.S. So­lic­i­tor Gen­eral Neal Katyal ar­gued that Wad­dell and Mer­rill’s de­ci­sions were in fact part of an over­all pat­tern of pro­found eco­nomic ac­tiv­ity. Congress, in its find­ings sup­port­ing the health­care law, said that in 2008 Amer­i­cans who re­ceived care with­out hav­ing in­surance shifted $43 bil­lion in costs to those with means to pay.

“What we’re say­ing here is, Congress is reg­u­lat­ing ac­tiv­ity,” Katyal said. “The ac­tiv­ity is par­tic­i­pa­tion in health­care mar­kets. That is a vir­tu­ally uni­ver­sal fea­ture of hu­man ex­is­tence.”

Judge Diana Grib­bon Motz asked whether Congress, in try­ing to force cit­i­zens to be­have re­spon­si­bly in health­care, was open­ing it­self up to the ar­gu­ment that it was be­com­ing a “gov­ern­ment Big Brother” that could also force cit­i­zens to, for ex­am­ple, eat broc­coli or forgo trans fat.

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