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Health Reform Law’s Supporters Encouraged by Appeals Court Ruling

BY Murrey Jacobson  June 29, 2011 at 6:05 PM EST

President Obama signs the health reform measure into law in March 2010. File photo by AFP/Getty.

Other opinions from federal appeals courts in Richmond, Va., and Atlanta are expected soon and have attracted more attention because they involve challenges to the law from a number of states.

But supporters of the law said they were especially encouraged by the ruling this afternoon from the Sixth Circuit Court of Appeals in Cincinnati because a known conservative judge on the panel wrote that he believed the individual mandate — which requires nearly all individuals to buy health insurance beginning in 2014 — is constitutional.

Judge Jeffrey Sutton joined with Judge Boyce Martin Jr. — a more liberal member of the Sixth Circuit — in backing the legal viability of the mandate. The Thomas More Law Center had appealed an earlier ruling on the case in Michigan. Attorneys for the Center argued — as many opponents have — that the Commerce Clause of the Constitution does not give Congress the authority to regulate economic “inactivity,” or in this case, to compel people to purchase a product because of its potential economic impact of NOT buying insurance.

But Sutton, an appointee of President George W. Bush and a former law clerk for Supreme Court Justice Antonin Scalia, became the first Republican-nominated judge in the country to rule that Congress did have the power to compel to buy insurance, arguing that “no one is inactive when deciding how to pay for health care.”

“Call this mandate what you will,” Sutton wrote, “an affront to individual autonomy or an imperative of national health care –  it meets the requirement of regulating activities that substantially affect interstate commerce. …Not every intrusive law is an unconstitutionally intrusive law.”

“This is a complete vindication of the constitutionality of the Affordable Care Act,” said Walter Dellinger, former U.S. Solicitor General and Chair of the Appellate Practice at OMelveny & Meyers.

Sutton’s ruling is important because it comes from a noted and respected thinker on the conservative side who “obliterates the notion that this is a regulation of inactivity,” Dellinger told reporters.

The Obama administration — in a blog post — also said that Judge Martin reached a similar conclusion on the question of Congress’s power to force people to buy insurance, quoting part of his ruling: “Far from regulating inactivity, the minimum coverage provision regulates individuals who are, in the aggregate, active in the health care market…because of two unique characteristics of this market: (1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.”

But the law is still expected to face substantial battles in other courts and ultimately be brought before the Supreme Court, said Tevi Troy, a fellow at the conservative Hudson Institute and a former deputy secretary for Health and Human Services during the George W. Bush administration.

“Nothing has changed the fact the Obama health care law is expensive, intrusive, and continues to face significant challenges on the political, legislative, and judicial fronts,” he said.

Other conservative judges are likely to rule against the mandate. And some may follow the reasoning cited by Judge James Graham, a Reagan appointee, in his partial dissent today.

“If the exercise of power is allowed and the mandate upheld,” Graham wrote, “it is difficult to see what the limits on Congresss Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit … as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does.”

So far, the Obama administration has won more court cases than the opposition. But observers are watching closely for how other appellate courts will weigh in. The Kaiser Family Foundation has a running tally of the legal battles here.