Inside: Guest Editor’s Column

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Rashmi Nijagal

Rashmi Nijagal

On May 10, 2011, the Obama administration began defending its 2010 Patient Protection and Affordable Care Act (PPACA) in the federal appellate courts. The United States Court of Appeals for the Fourth Circuit was the first of the appellate courts to take up the constitutionality of the health care act. By the time this issue goes to press, the Court of Appeals for the Sixth Circuit and the Court of Appeals for the 11th Circuit will have heard arguments in defense of the health care act. The split of opinions in the lower courts thus far have fast-tracked the health care act to the U.S. Supreme Court, which many legal observers believe will take up the contentious law when its new term begins in October.

The May 10th hearing in Richmond, VA drew excitement from supporters of the health care act and administration when the three-judge panel was revealed the morning before arguments began. The three randomly selected judges are all Democratic appointees, one appointed by President Bill Clinton and the other two by President Barack Obama. On June 1st, the Sixth Circuit, after considering the plaintiffs’ standing to sue (one plaintiff recently disclosed that she now has health insurance through her employer) heard arguments from both sides challenging the law’s constitutionality. The Sixth Circuit panel consisted of two Republican-appointed judges and one judge appointed by President Jimmy Carter. Accounts of the June 1st hearing reflected that the panel was arguably less friendly to the government than the Fourth Circuit panel.

The make-up of the Fourth Circuit and the Sixth Circuit three-judge panels is no guarantee of a ruling along “party lines.” However, the lower courts’ holdings have reflected divisions along party lines so the glimmer of hope seen by PPACA’s advocates and supporters after the May 10th panel selection is not merely wishful thinking.

In the lower courts, three district judges appointed by Democratic presidents have upheld the law while two Republican-appointed judges have struck down all, or a part of, the health care act. In October 2010, Judge George Steeh, appointed to the U.S. District Court for the Eastern District of Michigan by President Clinton, deemed the individual mandate provision (requiring individuals who have not obtained health insurance by January 2014 to pay a penalty) constitutional and disagreed with the law’s detractors who said that the health care act runs afoul of the Commerce Clause. U.S. District Court Judge for the Western District of Virginia, Norman K. Moon, also a President Clinton appointee, ruled similarly, declaring the individual mandate and the employer mandate constitutional. On February 22nd of this year, Judge Gladys Kessler of the U.S. District Court for the District of Columbia rejected a challenge to the health care act on the basis that it violates the Religious Freedom Restoration Act and the Commerce Clause. Rejecting as “pure semantics” that failing to acquire insurance was the regulation of inactivity, Judge Kessler noted that “those who do not purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” [1]

Challengers to PPACA have found support in the lower courts as well. OnDecember 12, 2010, U.S. District Judge Henry E. Hudson, appointed to the bench by President George W. Bush, became the first judge to rule against the health care act, stating that Congress does not have the authority under the Commerce Clause to impose the individual mandate provision. Judge Hudson said he could not find a precedent for extending the Commerce Clause to a person’s decision to not buy a product. [2]

Judge Roger Vinson, appointed to the U.S. District Court for the Northern District of Florida by President Ronald Reagan, declared the individual mandate provision of the health care act unconstitutional because it exceeds the authority of Congress to regulate interstate commerce. By ruling that the provision is not severable from the PPACA as a whole, Judge Vinson struck down the entire act. [3]

The federal appellate courts are now focused on the same question the lower courts faced: whether the choice not to buy health insurance should be defined as commercial activity that the Supreme Court has ruled can be regulated under the Commerce Clause or as inactivity which is beyond Congress’ reach.[4] According to observers of the May 10th hearing before the Fourth Circuit panel, the hearing lasted more than two hours during which the judges pressed both sides with pointed questions.[5] The government’s strategy at that hearing was to focus the panel on activity instead of inactivity. Acting Solicitor General Neal K. Katyal tried to argue that the activity the health care law regulates “is merely the means of payment by Americans who will inevitably enter the health care market and who will shift costs onto others if they are not insured.”[6] Matthew Staver, dean of Liberty University which is challenging the law, said that PPACA “forces inactive bystanders into the stream of commerce.”

Given the deeply divided opinions and rulings regarding the health care act, it is now inevitable that the Supreme Court will take up the issue. Based on the rulings so far (at least at the time this issue went to press) and how support for the law appears to depend on whether the judge was a Democratic or Republican appointee, the question is whether the Supreme Court will fall along party lines as well, with Justice Kennedy being the swing vote.

Earlier this year, Harvard Law School professor Laurence Tribe asserted that predictions of a 5-4 split is an overly simplistic approach to assessing the Court’s views of the legal issues presented by the health care law and reflects a “misunderstanding” of the Court and the Constitution.[7] Stating that the distinction between “activity” and “inactivity” is illusory, Tribe does not believe that the justices will be “misled” by arguments that prompted Judge Hudson and Judge Vinson to declare the law unconstitutional. Tribe does not hide his disdain for the constitutional challenges to the health care act, calling it a “political objection in legal garb” but also derides efforts to pigeonhole the Court’s more conservative jurists according to their politics versus their legal principles. Save for Justice Thomas who has publicly and repeatedly spoken against the Court’s broad interpretation of Congress’ Commerce Clause powers, Tribe does not think that the Court will buck against the post-1937 line of cases broadly interpreting Congress’ commerce powers.

Time, and ultimately the Supreme Court, will tell if Tribe’s predictions come true.


Rashmi Nijagal is an attorney with the Ware Law Group, focusing primarily on healthcare law. A former medical malpractice litigator, she now practices regulatory and administrative law representing medical staffs at hospitals.


[1] “Third Federal Judge Upholds Health Care Law; Score Now 3-2”. (2011, February 22). ABC News: The Note.
[2] Schoenberg, Tom (2010, December 13). “Obama’s Health-Care Law Ruled Unconstitutional Over Insurance Requirement”. Bloomberg. Retrieved January
11. “The Obama administration’s health- care overhaul unconstitutionally requires Americans to maintain a minimum level of health insurance, a federal judge ruled, striking down the linchpin of the plan.”
[3] “Judge strikes down healthcare reform law”. (2011, January 31). Reuters.com.
[4] “Appellate Court Hears Defense of Health Law”. (2011, May 10). The New York Times.
[5] “Appellate Court Hears Defense of Health Law”. (2011, May 10). The New York Times.
[6] “Appellate Court Hears Defense of Health Law”. (2011, May 10). The New York Times.
[7] Tribe, Laurence (2011, February 7). “On Health Care Justice will Prevail”. The New York Times

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