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A divided federal appeals court in Washington has upheld the constitutionality of the Obama administration’s health care reform law, solidifying the split among circuit courts over the controversial legislation. Two judges on the U.S. Court of Appeals for the D.C. Circuit panel — senior judges Laurence Silberman and Harry Edwards — declared the landmark legislation constitutional, affirming a trial judge’s ruling in U.S. District Court for the District of Columbia. Writing for the majority Nov. 8, Silberman said the issues presented in the case “will surely be decided by the Supreme Court.” Indeed, the high court could decide this week whether to hear challenges to the law. The case in the D.C. Circuit challenged the legality of the provision of the law that requires people to purchase and maintain minimum essential coverage. Silberman and Edwards said Congress did not overstep its authority. Still, the two judges said they “acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” “But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation,” Silberman wrote. Silberman said the appeals court was “interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.” Judge Brett Kavanaugh, writing in dissent, said the appeals court should not have granted jurisdiction to rule on the merits of the case. He voted to vacate Judge Gladys Kessler’s ruling in February that dismissed the suit. “For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions,” Kavanaugh said. “But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.” The Anti-Injunction Act, Kavanaugh said, restricts the ability of federal trial judges to hear “pre-enforcement suits” that restrain the assessment of collection of any tax. Under the act, the judge said, a person must first pay the disputed tax and then challenge it. The so-called “individual mandate” does not take effect until 2014. “[H]istory tells us to cross that bridge only if and when we need to,” Kavanaugh said. “Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day — a day that may never come.” Contact Mike Scarcella at [email protected].

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