WSJ: DC Circuit Judges Air Doubts on Challenge to Health Overhaul

  • U.S. NEWS
  • SEPTEMBER 24, 2011

Judges Air Doubts on Challenge to Health Overhaul

By BRENT KENDALL

WASHINGTON—Judges on a federal appellate court suggested Friday that last year’s health-care overhaul was an unprecedented assertion of power by the government, but they didn’t clearly signal a readiness to strike down the law.

The court at times questioned whether it even had jurisdiction to consider the case, an issue that could delay an ultimate resolution on the law’s constitutionality.

Judges Brett Kavanaugh and Laurence Silberman, conservative members of a three-judge panel that presided over two hours of oral argument, said they worried about the implications of allowing Congress to require that individuals either purchase health insurance or pay a penalty.

"In 220 years…Congress has never once mandated a purchase," Judge Kavanaugh said in proceedings at the U.S. Court of Appeals for the District of Columbia Circuit. But he went on to concede that the health-care law’s guarantee of insurance coverage for Americans "won’t work without the mandate."

Three federal appellate courts have already ruled on the issue, with two ruling in favor of the Obama administration and a third finding the individual mandate unconstitutional. Ultimately, the Supreme Court is expected to decide the matter.

The D.C. Circuit’s rulings traditionally get particularly close attention from the Supreme Court, in part because four of the justices—including Chief Justice John Roberts—previously sat in that circuit.

Judges Kavanaugh and Silberman pressed the Justice Department, which is defending the law, to lay out a workable principle that would limit the ability of Congress to require citizens to make other types of purchases in the future.

Judge Kavanaugh, an appointee of President George W. Bush, said that if lawmakers could require citizens to maintain health insurance, logic would also suggest Congress could mandate that citizens invest in private retirement accounts to address a crisis in Social Security.

"I see it coming," he said.

Both conservative judges, however, indicated that they were grappling with previous Supreme Court opinions that granted Congress broad power to regulate interstate commerce.

Judge Silberman, a Reagan appointee, said the health-care law’s challengers faced a high hurdle because of a 1942 Supreme Court ruling, Wickard v. Filburn, that allowed the federal government to regulate the wheat a farmer grew for personal use on his own farm.

"In a sense, that is a greater exercise of governmental power than this case," he said.

A third member of the panel hearing Friday’s arguments, Judge Harry Edwards, a Carter appointee, appeared inclined to uphold the law. He voiced agreement with the Justice Department’s argument that the insurance requirement was a permissible way for Congress to address the unique problems of the health-care market.

One thing was clear from Friday’s proceedings: The legal debate surrounding the health-care law is becoming more complicated, as judges read the opinions written by their colleagues on other courts.

Judge Kavanaugh in particular appeared to believe that lawsuits challenging the insurance mandate are premature, a legal argument that had gained little traction until the Fourth U.S. Circuit Court of Appeals in Richmond, Va., embraced it earlier this month.

The Fourth Circuit ruled that the insurance-mandate penalties amounted to a type of tax that could only be challenged after it is collected, rather than before.

Judge Kavanaugh said he had "a major concern" that courts have no legal jurisdiction to hear such cases until individuals start paying penalties in 2015.

Write to Brent Kendall at brent.kendall

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