Bloomberg - Obama Health-Care Law Gets Mixed Reaction From Appeals Court

September 24, 2011
By Tom Schoenberg

President Barack Obama’s health- care law got a mixed reception in its fourth review by a federal appeals court as three judges grappled with questions about the law’s constitutionality and their own authority to rule on it.

In a two-hour argument yesterday in Washington, two judges of the U.S. Court of Appeals for the District of Columbia Circuit said a ruling upholding the law, which requires that most Americans buy insurance or face a tax penalty, could leave the government with unprecedented power over its citizens.

“In 220 years there has been a whole lot of laws and a lot of crises, yet Congress has never once mandated a purchase,” said Judge Brett Kavanaugh, adding that the “lurking next step” might be a law requiring investment in private retirement accounts.

Kavanaugh also questioned whether federal courts could rule on the law before any taxpayer had been assessed a penalty.

The Washington appellate panel may be the last to rule on the law before it reaches U.S. Supreme Court. . . .

. . . . The government argued yesterday that the legislation is an extension of Congress’s power to tax, as people who fail to buy coverage starting in 2014 would face a penalty to be included on an individual’s tax return.

Edward White, arguing for the plaintiffs, said until now Congress used incentives, citing the cash vouchers offered new- car buyers under the “Cash for Clunkers” program. The health- care law, by contrast, requires people to purchase a product in the private marketplace with no opportunity to opt out, he said.

“You can never check out of this hotel,” said White of the American Center for Law & Justice. “You can check in, but you can never leave.”

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