Appellate judges say challenge to the ACA may be premature
A conservative-leaning panel of federal appellate judges raised concerns about President Barack Obama’s healthcare overhaul, but suggested the challenge to it may be premature. During arguments in the U.S. Court of Appeals for the District of Columbia Circuit, Judge Brett Kavanaugh, a former top aide to President George W. Bush, who appointed him to the bench, said he has a “major concern” that courts might not be able to rule on the law’s constitutionality until 2015. That’s because a federal law bars most challenges to tax-related legislation before the tax or penalty is paid. A federal appeals court in Richmond this month cited that law in throwing out another challenge to the law. Two other appeals courts have reached differing conclusions—one declaring the law unconstitutional and the other upholding it. The Supreme Court is expected to weigh in and could possibly even decide to review the law before the D.C. Circuit issues an opinion. The Washington case was brought by the American Center for Law and Justice, a legal group founded by evangelist Pat Robertson, on behalf of five Americans who chose not to buy health insurance because of religious beliefs that God heals their afflictions or a holistic approach to medical care. Kavanaugh and the panel’s other Republican-appointed judge, Laurence Silberman, expressed concern that if the court upholds the law’s requirement to buy health insurance, Congress could require Americans to buy a wide variety of other products. “It won’t work without an individual mandate attached to it,” Kavanaugh said. He also theorized that the healthcare law could mark the shift in the social safety net to private industry. “Why should the court risk getting in the middle of that?” the judge questioned.