A swing and a miss

Judge’s rul­ing draws re­ac­tion from both sides

Modern Healthcare - - THE WEEK IN HEALTHCARE - Joe Carl­son

Un­der the loom­ing prospect that the Supreme Court will ren­der the fi­nal ver­dict on Pres­i­dent Barack Obama’s health­care re­form law, a ma­jor­ity led by an in­flu­en­tial con­ser­va­tive judge last week up­held the law’s in­sur­ance man­date while a state elec­torate re­jected it.

Se­nior Judge Lau­rence Sil­ber­man, writ­ing for a 2-1 ma­jor­ity in the U.S. Court of Ap­peals for the District of Columbia, up­held the Pa­tient Pro­tec­tion and Af­ford­able Care Act’s con­tro­ver­sial re­quire­ment that nearly all Amer­i­cans pur­chase in­sur­ance or pay a tax penalty in 2014. The 31-page opinion in Seven-sky v. Holder came Nov. 8, two days be­fore the Supreme Court met to dis­cuss whether to grant oral ar­gu­ments on the re­form law dur­ing the spring 2012 term.

Sil­ber­man’s rul­ing dis­ap­pointed many con­ser­va­tives and buoyed sup­port­ers of the law be­cause of the judge’s well-known cre­den­tials on the right, in­clud­ing his 2007 opinion strik­ing down Washington, D.C.’S gun ban, which led to the Supreme Court’s first-ever find­ing that the Sec­ond Amend­ment pro­tects a pri­vate in­di­vid­ual’s right to bear arms.

Re­form-law pro­po­nents said Sil­ber­man’s un­qual­i­fied find­ing that Congress had the con­sti­tu­tional power to force Amer­i­cans to buy in­sur­ance could in­flu­ence two po­ten­tial con­ser­va­tive swing votes on the Supreme Court: jus­tices An­tonin Scalia and An­thony Kennedy, who sided with a ma­jor­ity up­hold­ing Congress’ power to reg­u­late ac­tiv­ity that only in­di­rectly af­fected in­ter­state com­merce in a 2005 de­ci­sion in­volv­ing med­i­cal mar­i­juana.

“A sin­gle in­di­vid­ual need not even be en­gaged in any eco­nomic ac­tiv­ity—i.e. not par­tic­i­pat­ing in any lo­cal or in­ter­state mar­ket—so long as the in­di­vid­ual is en­gaged in some type of be­hav­ior that would un­der­cut a broader eco­nomic reg­u­la­tion if left un­reg­u­lated,” Sil­ber­man wrote, quot­ing lan­guage di­rectly from Scalia’s own con­cur­ring opinion in the mar­i­juana case.

Op­po­nents of the re­form law, mean­while, said the Seven-sky rul­ing only widened the split in the cir­cuits and made it more likely the Supreme Court would take up the is­sue. In June, the 6th Cir­cuit Court of Ap­peals in Cincin­nati up­held the in­di­vid­ual man­date, while the 11th Cir­cuit Court of Ap­peals in At­lanta struck it down two months later.

Sil­ber­man also wrote that the sense that re­quir­ing Amer­i­cans to buy a good or ser­vices is “an in­tru­sive ex­er­cise of leg­isla­tive power surely ex­plains why Congress has not used this au­thor­ity be­fore—but that seems to us a po­lit­i­cal judg­ment rather than a recog­ni­tion of con­sti­tu­tional lim­i­ta­tions.” Vot­ers in Ohio last week pro­vided a new snapshot of the pol­i­tics of the is­sue.

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