YET ANOTHER APPEALS COURT HEARD FROM

The final federal Court of Appeals decision on the constitutionality of the Affordable Care Act, before the Supreme Court meets to decide which cases to consider, was issued this week. It includes some interesting twists.

The DC Circuit upheld the law’s requirement that nearly all Americans must have health care coverage in a 2-1 ruling. However, the minority vote was cast not because of the constitutionality issue, but because the dissenting judge, Brett Kavanaugh, a George W. Bush appointee, considered that—under the Anti-Injunction Act, which limits attempts to strike down proposed taxes—no ruling was appropriate at this time. Judge Kavanaugh’s citing of the Anti-Injunction Act echoed an earlier decision by the full Fourth Circuit that imposition of the individual mandate’s penalties could not be considered until they were implemented and individuals had been forced to pay them, in effect interpreting the penalties as a form of taxation.

While it was clear that the two majority judges took Judge Kavanaugh’s argument seriously, the odds seem to be against the Supreme Court agreeing when faced with both supporters and opponents of the Affordable Care Act in agreement that the Court should rule on the constitutionality issue as soon as possible, not some time after January 2014.

The second interesting twist was that the majority decision was written by a highly regarded conservative appointee, Judge Slberman, whose opinion indicated some dislike for legislative attempts to dictate individual behavior such as purchasing insurance, but also a recognition that this was consistent with other governmental authority already upheld by the courts. Judge Silberman noted: "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local--or seemingly passive--their individual origins."

The DC Circuit is now the second apppeals court to uphold the health care reform law's individual mandate, with a third appeal court's having ruled against the mandate, and others rejecting cases on jurisdictional or other grounds. The ruling came just a couple of days before the Supreme Court was expected to decide, in a private conference, whether to take up the issue--and, if so, which specific appeals court rulings would be considered--with a decision that could be made public as soon as Monday.