Reform ruling has observers facing off on future
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