Tak­ing sides

Re­form rul­ing has ob­servers fac­ing off on fu­ture

Modern Healthcare - - The Week In Healthcare - Vince Gal­loro

Like ev­ery­thing else associated with health­care re­form, the rul­ing last week by a fed­eral ap­pel­late court that Congress has the power to im­pose an in­di­vid­ual man­date to buy health in­surance split ob­servers into their fa­mil­iar camps on the po­lit­i­cal left and right. The three-judge panel that made the rul­ing was it­self di­vided, 2-1, on the ques­tion of the man­date’s con­sti­tu­tion­al­ity.

Given the tim­ing of this rul­ing and other ap­peals, some legal schol­ars sug­gested the U.S. Supreme Court might hear the case in the term that be­gins in Oc­to­ber, with a rul­ing ex­pected by the end of June 2012, or about four months be­fore the next pres­i­den­tial Elec­tion Day.

Nat­u­rally, sup­port­ers of the Pa­tient Pro­tec­tion and Affordable Care Act hailed the de­ci­sion from the 6th U.S. Cir­cuit Court of Ap­peals in Cincin­nati. Not only were they pleased with the re­sult, but they also sug­gested that one of the judges who voted to up­hold the man­date, an ap­pointee of Pres­i­dent Ge­orge W. Bush in 2003, sig­naled that the man­date might find fa­vor with at least some of the con­ser­va­tive jus­tices on the U.S. Supreme Court.

Legal schol­ars on the op­po­site side, how­ever, were quick with their re­tort: “Not so fast,” as Randy Bar­nett, a pro­fes­sor of legal the­ory at Ge­orge­town Univer­sity Law Cen­ter, wrote on a con­ser­va­tive legal blog, volokh.com. Ap­pel- late Judge Jef­frey Sut­ton, the Bush ap­pointee who voted in fa­vor of the man­date, is a for­mer clerk to Supreme Court Jus­tice An­tonin Scalia and is well-re­spected by con­ser­va­tive legal schol­ars, Bar­nett al­lowed, but one im­pli­ca­tion of his opin­ion—that once a cit­i­zen joins the health­care in­surance mar­ket, he or she can never leave it—makes it un­likely that the Supreme Court would adopt his rea­son­ing.

The Cincin­nati rul­ing was the first among the four district court chal­lenges to the act that have had oral ar­gu­ments be­fore ap­pel­late courts (May 9, p. 10). The Cincin­nati panel heard ar­gu­ments in the case last month. Sep­a­rate pan­els of the 4th U.S. Cir­cuit Court of Ap­peals in Rich­mond heard ap­peals of two district court rul­ings—one up­hold­ing the act, one in­val­i­dat­ing the in­di­vid­ual man­date—in May. The 11th Cir­cuit in Atlanta last month heard the ap­peal of the rul­ing by U.S. District Judge Roger Vin­son in Pen­sacola, Fla., that in­val­i­dated the act in its en­tirety.

The three judges on the Cincin­nati ap­peals panel each filed an opin­ion in the rul­ing, which ran 64 pages. Two of the judges found that Congress did not ex­ceed its au­thor­ity un­der the com­merce clause of the U.S. Con­sti­tu­tion when it im­posed the in­di­vid­ual man­date, and thereby af­firmed the rul­ing of a judge in U.S. District Court in Detroit. The man­date is “a reg­u­la­tion on the ac­tiv­ity of par­tic­i­pat­ing in the na­tional mar­ket for health­care de­liv­ery,” and thereby valid, wrote ap­pel­late Judge Boyce Martin Jr. Pres­i­dent Jimmy Carter ap­pointed Martin to the ap­peals court in 1979.

Sut­ton con­curred in the de­ci­sion. The Con­sti­tu­tion grants Congress the power to reg­u­late in­ter­state com­merce, he wrote, and “No mat­ter how you slice the rel­e­vant mar­ket—as ob­tain­ing

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