Bush-Appointed Former Scalia Clerk Upholds Constitutionality Of Health Care Law On Appeal

Lauren Victoria Burke/WDCPIX.COM

For the first time, a Republican appointed federal judge — part of a three-judge circuit court panel — has ruled that the individual insurance mandate in President Obama’s health care law is constitutional.

The Sixth Circuit appellate court panel — the first appellate court to rule on the question — dismissed the plaintiffs’ claim that levying a penalty against people who choose not to purchase insurance exceeds Congress’ Commerce Clause powers. The justices also dismissed the underlying argument that the provision amounts to “regulating inactivity.”

The development represents a significant victory for the Obama administration, which is facing numerous challenges to the mandate from individuals, conservative interest groups and Republican governors. A number of district court judges have ruled on the question already, and in a striking pattern, all Republican-appointed judges have ruled against the administration, and all Democratic judges with the administration. Today’s development upends that trend.“No one is inactive when deciding how to pay for health care,” wrote Judge Jeffrey Sutton — a conservative legal star, who clerked for Supreme Court Justice Antonin Scalia, and was appointed by President George W. Bush — in his concurring opinion.

Senior Judge Boyce Martin — a Carter appointee — went further still in his opinion. Though he affirmed the view that health care is a unique realm where no person is “inactive,” he also argued that, even if that weren’t the case, the Constitution places no limits on Congress regulating inactivity.

“[T]he Constitution imposes no categorical bar on regulating inactivity,” Martin wrote.

In a partial dissent, Judge James Graham — a Reagan appointee — agreed with his colleagues on minor, procedural issues, but sided with the plaintiffs in arguing that Congress has exceeded its Constitutional powers.

“If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be,” he wrote.

The Fourth and Eleventh Circuits will soon rule on similar cases, and the issue is expected to be resolved once and for all by the Supreme Court, perhaps as early as next year.

Read the decision below:

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