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A divided panel of the U.S. Court of Appeals for the 6th Circuit handed the Obama Administration its first appellate victory on Wednesday in the hard-fought battle over its signature health care law. While immediately hailing the ruling, supporters of the Patient Protection and Affordable Care Act (ACA) noted, in particular, the careful and thorough rejection of opponents’ arguments by long-time states’ rights advocate and panel member, Judge Jeffrey Sutton, appointed to the court by President George W. Bush. “Before argument occurred, if a proponent of ACA could pick a single appellate judge they would not want to have ruling on this case, it would be Judge Jeffrey Sutton,” said Simon Lazarus, public policy counsel to the National Senior Citizens Law Center. “His opinion will be important not just because he will be viewed by conservative members of the Supreme Court as an ideological comrade in arms, but [because he will be viewed] by Chief Justice [John] Roberts as an intellectual peer. He raises every kind of objection made to the act in a thoughtful and sympathetic way and then proceeds to knock them down.” The key issue in the many lawsuits that have been filed challenging the act is the constitutionality of the so-called individual mandate, or minimum health insurance requirement. Opponents of the law have argued that Congress, by imposing the mandate, was regulating inactivity, and the commerce clause only permits regulation of economic activity. Sutton, concurring in the judgment, and Judge Boyce Martin appointed by President Jimmy Carter concluded that the federal law was a constitutional exercise of Congress’ commerce clause power, but on slightly different grounds. U.S. District Judge James Graham of Columbus, Ohio, sitting by designation, disagreed. “Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce,” wrote Martin in Thomas More Law Center v. Obama. “Furthermore, Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance. Finally, the provision regulates active participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity.” The Thomas More Law Center, a not-for-profit public interest law firm that describes itself as dedicated to the defense and promotion of the religious freedom of Christians and family values, brought the appeal on behalf of itself and several individuals who do not have health insurance. U.S. District Judge George Steeh rejected their challenge last October. In the portion of the opinion written by Sutton, he called “plausible” the challengers’ argument that a mandate to buy medical insurance “crosses a line between regulating action and inaction, between regulating those who have entered a market and those who have not, one that the Court and Congress have never crossed before.” But, he added, the government had the better arguments. “The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisite income to pay now rather than later for health care,” he explained. “Faced with $43 billion in uncompensated care, Congress reasonably could require all covered individuals to pay for health care now so that money would be available later to pay for all care as the need arises. Call this mandate what you will — an affront to individual autonomy or an imperative of national health care — it meets the requirement of regulating activities that substantially affect interstate commerce.” He emphasized that the challenge before the panel was a facial challenge, meaning that the law could not be constitutionally applied in any way. Although future challenges, he added, have “hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate as the relevant agencies implement it.” But Sutton’s most critical point, noted former acting Solicitor General Walter Dellinger of O’Melveny & Myers, was to “obliterate the notion this is somehow a regulation of inactivity. He sees it as imposition of an affirmative obligation.” Dellinger, who filed an amicus brief supporting the government on behalf of congressional Democratic leaders, said Sutton’s analysis will be influential because “he is one of most highly regarded appellate judges in the country. He has been an active advocate before the U.S. Supreme Court before going on the bench.” Department of Justice spokeswoman Tracy Schmaler said, “Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe these challenges to health reform will also fail.” Thomas Muise, lead lawyer for challengers, was not available for comment. He could seek en banc review of the ruling by the full circuit court, or he could go directly to the Supreme Court with a petition for review. Two other circuit courts–the 4th and 11th–recenty heard arguments in three appeals. Within the 4th Circuit, two district judges came to opposite conclusions on the law’s constitutionality. The 11th Circuit is considering the government’s appeal of a district court ruling invalidating the entire statute. Marcia Coyle can be contacted at [email protected] .

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