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Insurance mandate survives federal appeals court

The U.S. 6th Circuit Court of Appeals in Cincinnati rules that the insurance requirement in President Obama's healthcare law is constitutional.

June 29, 2011|By Noam N. Levey and David G. Savage, Washington Bureau

Reporting from Washington — President Obama's healthcare overhaul survived its first test before a federal appellate court, as the U.S. 6th Circuit Court of Appeals in Cincinnati concluded that the law's insurance requirement is constitutional.

"We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause," a 2-1 majority of the panel concluded, rejecting a challenge by the conservative Thomas More Law Center.

Notably joining the majority opinion was Judge Jeffrey Sutton, an appointee of President George W. Bush and a former law clerk to conservative Supreme Court Justice Antonin Scalia.

Sutton is the first Republican appointee on the federal bench to affirm the constitutionality of the so-called individual mandate.

The Thomas More lawsuit has not attracted as much attention as two other legal challenges being pushed by GOP state officials in Virginia, Florida and other states. Those suits are being reviewed by federal appellate courts in Atlanta and Richmond, Va.

Most legal experts and other litigants involved in healthcare lawsuits expect the fate of the Patient Protection and Affordable Care Act that President Obama signed last year to ultimately be determined by the U.S. Supreme Court, possibly next year.

"While the decision in the 6th Circuit Court of Appeals is disappointing, it is only the first of several opinions we expect on the constitutionality of the law in the coming months," Karen Harned, executive director of the National Federation of Independent Business' Small Business Legal Center, said in a statement. The center is challenging the law in the Florida suit.

The 6th Circuit's opinion, and particularly Sutton's participation, marked a notable legal victory for the Obama administration and its allies, who have asserted that Congress had the authority to require Americans to obtain health insurance starting in 2014.

The administration has said the provision is a form of commerce regulation because a person's decision against obtaining health insurance imposes a cost on others who inevitably end up subsidizing medical care for the uninsured.

Sutton effectively accepted that reasoning in his opinion, which concurred with that of Judge Boyce F. Martin, an appointee of President Carter.

"No one is inactive when deciding how to pay for healthcare," Sutton wrote, rejecting the argument by critics of the law that Congress could not regulate "inactivity" such as the decision not to get health insurance, or to self-insure.

"Self-insurance and private insurance are two forms of action for addressing the same risk," he wrote. "Each requires affirmative choices."

Many healthcare experts believe an insurance mandate is crucial to guaranteeing that all Americans can get insurance, a right provided by the new law. Without such a requirement, people would be able to wait until they were sick to buy insurance, pushing up premiums.

Critics of the law contend, however, that the unprecedented insurance requirement tramples on individual liberty and opens the door to other government mandates.

Judge James Graham, who was appointed by President Reagan, reiterated that concern in his dissent Wednesday.

"If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress' Commerce Clause authority would be," he wrote.

Whether the Supreme Court will agree remains unclear. Sutton closed his opinion with a pointed defense of the kind of judicial restraint often championed by conservatives.

"Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of the national legislation, allowing the people's political representatives, rather than their judges, to have the primary say," Sutton wrote.

noam.levey@latimes.com

david.savage@latimes.com

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