Ap­pel­late judges say chal­lenge to the ACA may be pre­ma­ture

Modern Healthcare - - Late News -

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.

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